Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA277917 George G. Lomeli, Judge.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Elbert Bernard Stewart was convicted by a jury of assault with a deadly weapon with the personal infliction of great bodily injury (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a)), attempting to dissuade a witness (§§ 664/136.1, subd. (a)(2)), and soliciting the commission of a crime (§ 653f, subd. (a)). He was sentenced to 14 years in prison. He appeals, contending that his right to due process was violated when he was shackled during trial, the trial court erred in admitting evidence of an uncharged assault, and the cumulative effect of these errors requires reversal. We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
On March 28, 2004, Michele G., a prostitute, flagged down a car on Santa Rosalia Street in Los Angeles, told the driver she had been stabbed, and asked him to call an ambulance. Paramedics transported her to the hospital where she was found to have suffered eight stab wounds.
On that same early morning, Los Angeles Police Officer James Farrell and his partner were dispatched to an apartment (later determined to be defendant’s) at 3853 Potomac Avenue. Someone at that location had called the police and said he had stabbed “Michelle [G.]” When the officers arrived, they noticed bloodstains on the sidewalk outside the building. Due to the nature of the call, officers entered the apartment, but no one was inside.
The last name given on the police broadcast was not Michele G.’s last name, but a name which was similar.
Officer Farrell and his partner received information that Michele G. was at a local hospital. They interviewed her later that evening, and she told them defendant had stabbed her with a knife.
On March 30, 2004, Los Angeles Police Officer Michael Dickson responded to a call that a domestic violence suspect was at an apartment at 3853 Potomac Avenue. When the officer knocked on the door to the apartment, Daoud Murad answered the door. He described defendant’s car to the officer. Later, officers stopped defendant’s vehicle as it drove down Potomac Avenue. When defendant was arrested, he did not complain of any pain or injuries.
That same day, Los Angeles Police Detective Craig Dean interviewed Maurice Bradford at his apartment on Vernon Avenue. Bradford showed him bloodstains on the furniture and floor and defendant’s knife in the kitchen cupboard. Bradford told him that defendant had attacked Michele G.
Detective Dean spoke to defendant in jail. He did not notice any injuries on defendant, nor did defendant complain of any. At no time did defendant claim that Michele G. had stabbed him.
In January 2005, while defendant was in custody, his cellmate, a gang member, told police that defendant had asked him to recruit a fellow gang member to ensure that Michele G. did not testify. The police arranged to have an undercover officer, Jonathan Miller, meet defendant and tell him he was a gang member. The conversations between defendant and Miller were audiotaped and video-recorded. Defendant did not want to communicate audibly with Miller. He held up a photograph of Michele G. and mouthed the name “Michele.” He wrote notes to Miller, one of which said, “Tell that bitch if she likes living, stay her ass out of court.” Defendant referred to Michele as a vehicle and said he wanted her “processed” and “immobilized.” Defendant informed Miller that Michele G. could be found in a motel in the area around Jefferson and La Brea and gave him the names of people who could help locate her. Miller told defendant that it would not be easy and would cost about $1,000. Defendant said he would be able to pay Miller once he sold his car.
On January 22, 2005, Miller met with defendant a second time. Miller told defendant that he and his friends had “[taken] care of business.” Defendant told Miller, through written notes, that he did not want Michele G. to come to court and that Miller should talk to her again. Miller said he was going to take Michele G. out to the desert. Defendant said he just wanted Miller to talk to Michele G. again and to make sure she did not come to court.
Detective Jay Moberly and two other officers contacted defendant at the jail and asked him whether he had met with Jonathan Miller. Defendant said that Miller was going to be his “runner.” The officers informed him that Miller was an undercover officer. Defendant initially stopped answering questions, then told the officers he did not want to hurt Michele G.; he just wanted to prevent her from going to court. He acknowledged that he knew his actions were illegal.
At trial, Michele G. testified that she was a prostitute. She met defendant as a client in 2001. She left the state for awhile, and when she returned to California in 2003, she lived with defendant for two months. They used crack cocaine, and had a violent relationship. In one incident, he punched her in the face and attempted to rape her. Michele G. hit him in the head, threatened him with a butcher knife, and told defendant she would hurt him if he ever did it again. In another incident, in October 2003, Michele G. was at a friend’s house. Defendant drove up with someone named Jessica and threatened to call police if Michele G. did not come out of the house. Michele G. refused. Later, when Michele G. was walking to the store, defendant drove by with Jessica, brandished a firearm, and said “I’m going to kill you, bitch.” Michele G. called the police. Michele G. moved out of the apartment she shared with defendant, but continued to see him and take drugs with him.
On the evening of March 28, 2004, Michele G. was with a customer and called defendant to pick her up. Defendant arrived around 8 p.m. with another woman named Dee. Defendant was intoxicated and he began using heroin with Dee. He drove Michele G. back to his apartment, where there were three other people using crack cocaine. After 20 to 30 minutes, she, defendant, and Dee went to Maurice Bradford’s home. Defendant gave Michele G. $10, which she used to purchase more crack cocaine from Dee. After they smoked it, Dee left. Defendant then demanded $10 from Michele G. or “trade,” which she understood to be sex. She refused and defendant became angry. After 20 minutes of arguing, he pulled out the knife he always carried with him. He stabbed her in the torso and punched her with his fist. He continued to hit her, saying, “Quit clowning, bitch, you ain’t dead yet.” He stabbed her repeatedly. Bradford, who had been hiding in the bedroom, said he was going to call the police. Defendant said he would take Michele G. back to his house. Someone called a friend of theirs named Dave. Dave drove defendant and Michele G. and dropped them off in front of defendant’s apartment. As they walked toward his front door, defendant told Michele G. that he was not going to do prison time for her and that he would have to finish her off. She walked away and flagged down a car. Defendant left the location.
Michele G. had a total of eight stab wounds, four in her back, one on her knee, two in her left arm and one in her chest. The stab wound to her chest resulted in a collapsed lung. She had nerve damage in her lower back. A tendon in one of her fingers had been cut out. She spent 15 days in the hospital.
Michele G. admitted that she was currently in custody for another offense in another state and had been brought to California to testify in this case.
Maurice Bradford had died by the time of trial, and the jury heard his preliminary hearing testimony. He testified that Michele G. and someone named Troy were at his apartment when defendant arrived with Dee. Defendant had never been to Bradford’s home before. Defendant and Michele G. began arguing and Bradford went to his bedroom. When he came out of the room, he saw defendant stabbing Michele G. and she fell. Defendant continued to stab her as she lay on the floor. Bradford said he was going to call the police, but defendant stopped him.
Defendant testified on his own behalf. He acknowledged that he had paid Michele G. for sex and that they had lived together. He denied being violent toward her, and claimed that she was the one who acted violently. He told Michele G. he disapproved of her use of drugs. In June 2003, she kicked him, took out a butcher knife and called 911. The police arrived and talked to them. She attacked defendant again in July 2003 and January 2004. On March 1, 2004, defendant told her he wanted her to move out. She hit him in the head and tried to stab him with a knife. The police were called, but she left before they arrived.
Defendant said that the incident on March 28, 2008, started when Michele G. had agreed to give him some money because he was being evicted from his apartment. While in Bradford’s apartment, defendant started to lecture her about responsibility when she became angry and attacked him with a 12-inch butcher knife. She charged at him more than once and defendant pulled out his knife and “poked” her in the arm in self-defense. He poked her again in the arm and in the knee because she was struggling. Michele G. cut her hand when she grabbed defendant’s knife. Defendant denied that he stabbed her in the chest and said that only one of the cuts she received was serious and the rest were superficial. Defendant suggested calling 911, but she talked him out of it because Bradford had narcotics in his apartment. She told Bradford to call David Daoud. When Daoud dropped them off at defendant’s apartment, defendant called 911. Michele G. walked away, saying that she was going to the fire station. Although defendant admitted that he left the apartment, he claimed he did not do so to avoid police. He went outside to ensure that Michele G. made it to the fire station and to walk his dog.
In response to questions about the jail house conversations with Miller, defendant said he did not want Michele G. to testify because he knew she would lie. He never ordered anyone to hurt her.
On cross-examination, defendant admitted to a prior assault conviction in 1989. When asked about Jessica D., defendant acknowledged that in September 2003, he had had an altercation with her, but denied trying to strangle her. He said he had grabbed her shoulder when she threw his cell phone out of the car, slightly bruising her. When shown photographs of Jessica D.’s neck bruises, he denied inflicting the injuries. He denied telling Jessica D. that he was going to beat up Michele G. and denied waving a firearm at Michele G. He admitted knowing that Jessica D. had talked to police concerning the attack. Defendant said that Jessica was a pathological liar and capable of violence.
Appellant’s objections to this line of questioning were overruled.
DISCUSSION
I. The Request to Shackle Defendant
Defendant, who was represented by appointed counsel, was in leg chains at the preliminary hearing. Later, he made a Marsden motion and requested to appear in propria persona. He subsequently retained private counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On the day before trial, the court discussed whether defendant was interested in accepting the People’s plea offer. When defendant declined the offer, he was taken out of the courtroom. Out of defendant’s presence, the court and one of defendant’s attorneys had the following discussion: “THE COURT: Now, for the record, we had discussions in chambers about your concern for possible safety of counsel — and I’m talking to the defense attorney at this time — your safety and/or your interaction and/or statements by the defendant, that you feel that you are concerned somewhat about your safety; is that correct? [¶] [DEFENDANT’S COUNSEL]: Correct, Your Honor. My employer, Mr. Graysen, and I have had extensive conversations about [defendant], and we believe that if we don’t do certain things he requests us to do at certain times, he could become violent towards us. I’m not saying this to disparage, but it is a concern given his past behavior, so we would not be opposed if the court would like to restrain him in some manner, as long as the jury does not see the restraints. [¶] THE COURT: And that’s what the court intends to do based on your comments and representations to me. We have a belt that we’re going to put around the chair and onto his waist. It’s not a chain, it’s kind of a nylon belt. He is to be dressed in civilian clothing, have his hands free, so the only thing the belt will do is, if he attempts to stand up, it will slow him down because it will bring the chair up with him.”
That afternoon, the court conducted a hearing to determine whether the prosecution would be allowed to present evidence of defendant’s prior acts of violence.
The following day, defendant’s other attorney requested, in the presence of the prosecutor but not defendant, that defendant’s hands be cuffed together, stating, “He is, in my opinion, a volatile and dangerous person. I don’t think he’s guilty of what he’s charged with, I think he’s still entitled to . . . be proven guilty beyond a reasonable doubt and I’m going to fight like hell to protect all of his rights, but I don’t want to have to get injured for him.” Counsel then related a story about a lawyer he knew who was stabbed with a pencil “while sitting next to a defendant.”
The following colloquy ensued: “THE COURT: “That, coupled with what your colleague stated yesterday, which is enough for me to request a stealth belt, and you have augmented the record. . . . I’m willing to grant your request based on what you stated. My only request is if we shackle him with his hands under the table, he’s the kind of person, from what I understand, that may hold it up in front of the jurors. [¶] [DEFENDANT’S COUNSEL]: I would say if he’s acting out like that, he needs to go into the next room. [¶] THE COURT: And I’ve advised him of that. We’ve set up a speaker precisely for that reason. Bailiff, good thing you’re here. Aside from the stealth belt, we’re going to need to shackle his hands. . . . [¶] [DEFENDANT’S COUNSEL]: Also, for the record, I find [defendant] to be a very likable individual, but when he gets angry about his case or the evidence is against him, he gets very volatile. [¶] THE COURT: Or he perceives you’re not asking the right questions. I saw that yesterday. [¶] [DEFENDANT’S COUNSEL]: Yes. Your Honor, you’re going to tell him if he picks up his arms, is disruptive in any way, he’s going to the next room? [¶] THE COURT: Yes. I told him that over and over again yesterday. I told him his fate is basically in his own hands. We’ve set up a speaker already for that purpose.” (Italics added.)
Late in the afternoon of the same day, during voir dire, defendant’s counsel asked a prospective juror, “Juror number 7, did you notice that my client had handcuffs on?” When the juror replied that he had not, defendant’s counsel replied, “Well, he does. It has nothing to do with the case. If you’re instructed to not include that fact in your deliberations, will you be able to do that?” The juror replied yes.
` The court immediately admonished the jury. “And I might as well get to the point, why I brought up. The fact that someone may be handcuffed doesn’t make them guilty of the charges. You have to understand that. Right? And not to have your — you’re not to give it any consideration whatsoever. You have to determine whether or not the evidence has established the charges in this case, not give that any — and I’m talking about that, that being the fact that he has handcuffs — any consideration.”
Later, counsel asked another prospective juror whether he or she would be able to set aside the fact that defendant was in handcuffs. There is nothing in the record explaining why defendant’s counsel felt the need to address defendant’s handcuffs.
The following day, after the jury was selected, defendant’s counsel requested that the handcuffs be removed, saying that defendant had been able to “keep his cool” and that he had admonished defendant. The court ordered that defendant “be unrestrained” on the condition that the decision could be reassessed.
From this comment, we surmise that appellant’s belt was removed as well.
Just before the verdicts were read, defendant’s counsel again requested that defendant be restrained based on statements defendant had recently made.
Defendant contends that his exclusion from the hearings regarding his shackling violated his constitutional rights. He asserts there was insufficient evidence of the need for restraints. He also argues that the court’s admonishment during voir dire failed to overcome the prejudice which resulted from the jurors’ ability to see his handcuffs.
The Attorney General urges that any claim of error with regard to the use of restraints was forfeited. We agree. Defendant was handcuffed at his attorney’s request, and defendant implicitly acquiesced. “It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal. Defendant’s failure to object and make a record below waives the claim here. [Citations.]” (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.) A review of the record reveals that defendant was not shy about addressing the court and expressing concern over his attorneys’ handling of his case. As the court remarked shortly after seeing defendant in court for the first time, “Well, Mr. Stewart, let me tell you something right off the bat. I can see that you like to talk and you like to address the court.” Notwithstanding his proclivity to point out perceived shortcomings in the proceedings, defendant did not object to the restraints that were used during voir dire. He cannot press his claim here.
In any event, we perceive no error in the court’s ruling. The trial court has broad discretion in deciding whether to order restraints on a defendant. (People v. Ayala (2000) 24 Cal.4th 243, 250.) There must be a showing of “‘violence or a threat of violence or other nonconforming conduct.’” (People v. Cunningham (2001) 25 Cal.4th 926, 987, quoting People v. Duran (1976) 16 Cal.3d 282, 291.) The trial court must “base its determination on facts, not rumor and innuendo even if supplied by the defendant’s own attorney.” (People v. Cox (1991) 53 Cal.3d 618, 652, superseded in part by statute in Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1210.) We will uphold the trial court’s determination absent a showing of a manifest abuse of discretion. (People v. Cunningham, supra, 25 Cal.4th at p. 987; People v. Livaditis (1992) 2 Cal.4th 759, 774.)
We cannot lose sight of the fact that defendant’s trial counsel requested not once, but twice, that he be restrained. Defendant’s attorneys feared that if his requests were not followed, “he could become violent towards us.” Their concern was based upon interaction with their client and statements he had made to them. When defendant’s counsel asked that defendant’s hands be shackled, he explicitly told the court he believed that defendant was “a volatile and dangerous person.” Counsel stated his firm belief that defendant was not guilty of the charges and pledged to “fight like hell to protect all of his rights.” Nonetheless, counsel did not believe he was required to risk being injured by his client. Counsel told the court that “when [defendant] gets angry about his case or the evidence is against him, he gets very volatile.”
Defendant complains that his attorneys’ fears were vague and lacked any factual basis. However, he ignores the fact that the court confirmed counsel’s claims regarding defendant’s behavior. When the court attempted to explain the prosecutor’s plea offer, defendant asked to address the court and asserted he did not know why he had been brought into the courtroom. He questioned whether his attorneys had conducted discovery or filed the appropriate motions. Twice during this exchange, the court had to remind defendant not to become disrespectful and advised him that he could be removed from the courtroom if he became disruptive.
At one point it admonished defendant. “I’m not saying that this is going to happen, and [I] hope it doesn’t happen, but let me describe to you a scenario that occasionally happens in this court, and that is we will get defendants who will become . . . disruptive, become disrespectful of the court, will have verbal outbursts in court, will be obstreperous. . . . You definitely have a constitutional right to be here, the law guarantees that, but once you begin to be disruptive in any way, what I wind up doing, and what I’ve done with other defendants, is we’ll take you back in the holding cell and you will hear the proceedings from a speaker that we have set up.” After receiving defendant’s acknowledgement that he understood, the court concluded, “I really wish you will behave yourself and take part in these proceedings, but if you do not, rest assured that I will exercise that option.”
Later during the same session, defendant began to ramble on about proceedings that had taken place in another courtroom and how he had learned that he was a suspect in a murder for hire plot involving a judge, a deputy district attorney, and an investigating officer. The court had to interrupt defendant several times to remind him that his counsel was there to present defendant’s case. Again, it admonished defendant not to be disruptive. It warned defendant that jurors who see outbursts from a defendant will hold it against him or her. Nonetheless, defendant had to get in the last word, telling the court, “I’m a profiler, just like when you see the movie [sic] ‘Criminal Mind[.]’ I can do stuff.”
That afternoon, the court conducted a hearing to determine the admissibility of evidence relating to defendant’s prior assaults. The next day when defendant’s counsel informed the court that defendant became volatile when things were not going his way, the court interjected, “Or he perceives you’re not asking the right questions. I saw that yesterday.” We assume the court was referring to the hearing that took place the preceding day.
We conclude the court had sufficient evidence to conclude that defendant was a threat to become violent or engage in other inappropriate courtroom conduct. Its decision to order restraints did not constitute an abuse of discretion.
Defendant argues he was denied his constitutional right to be present at the hearings where the court determined he should be restrained. However, he did not object in the trial court, thus forfeiting the issue on appeal. (People v. Santos (2007) 147 Cal.App.4th 965, 972.)
On the merits, we find his constitutional claim unpersuasive. “[U]nder the Fourteenth Amendment’s due process clause, a criminal defendant does not have a right to be present at a particular proceeding unless he finds himself at a ‘stage . . . that is critical to [the] outcome’ and ‘his presence would contribute to the fairness of the procedure.’ [Citation].” (People v. Waidla (2000) 22 Cal.4th 690, 741-742.) Defendant asserts it is clear that his presence at the hearings was essential to the fairness of those proceedings because he could have “contested the adequacy and validity of counsel’s vague allegations [regarding his volatility] and/or have provided adequate assurances to the court that he would not act out violently.” Setting aside whether the hearing was a stage of the trial that was critical to the outcome, we do not agree that defendant’s presence would have contributed to the fairness of the hearing. As we have pointed out, defendant did not object to being restrained. More importantly, it was because the court had an opportunity to observe defendant’s behavior in court that it agreed with counsel that restraints were necessary. Defendant’s presence would not have helped his cause.
Finding no error in the court’s decision to restrain defendant, we need not address the efficacy of its admonishment to the jury.
II. Evidence of the Prior Assault
Defendant also contends that his right to due process was violated when the trial court admitted evidence of his 2003 assault on Jessica D.
During cross-examination of defendant, the prosecutor asked about the prior incident with Jessica D. Defendant’s counsel objected because defendant “didn’t say he was a peaceful person.” The court overruled the objection, stating that evidence about Jessica D. “can come in over and above that proviso because there is a link to Michelle [G.], in that he beat her up . . . because she [Jessica D.] failed to locate her [Michele G.].” This was the same ruling the court had made during the pretrial hearing concerning the admissibility of defendant’s prior violent acts.
Even if we assume the trial court erred (a finding we do not make), admission of this evidence was utterly harmless. The case establishing defendant’s guilt was overwhelming. Although he claimed to have acted in self-defense when he merely “poked” Michele G. with a knife, the undisputed evidence was that she suffered eight stab wounds, four to her back, a collapsed lung, and had a tendon in one of her fingers cut out, all of which resulted in a 15-day hospital stay. In contrast, when defendant was interviewed two days after the attack, he had no apparent injuries. Moreover, the jury heard the testimony of Maurice Bradford, who stated that he saw defendant stabbing Michele G. as she lay on the floor, and evidence of defendant’s attempt to hire someone to keep Michele G. from testifying. It is not reasonably probable that the outcome would have been different had the court not admitted the evidence of the prior assault on Jessica D. Accordingly, reversal is not warranted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Cumulative Error
Since we have determined that any possible error was harmless, we conclude that the cumulative effect of the court’s rulings did not result in a fundamentally unfair trial. (People v. Seaton (2001) 26 Cal.4th 598, 591-592; People v. Cunningham, supra, 25 Cal.4th 926, 1009.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.