Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS033160A.
Bamattre-Manoukian, ACTING P.J.
Defendant Kerry Vinson was convicted after jury trial of battery by a prisoner on a non-prisoner (Pen. Code, § 4501.5), and misdemeanor destruction of evidence (§ 135). The trial court sentenced defendant to four years in state prison. The court also granted defendant 362 days presentence custody credits and imposed a $20 court security fee.
All further statutory references are to the Penal Code.
On appeal defendant contends that his constitutional rights to due process and a fair trial were violated when he was forced to proceed to trial in prison attire and physical restraints without a showing of a manifest need for such restraints. In a related argument defendant contends that his counsel rendered ineffective assistance by failing to object to the prison attire and physical restraints. Defendant also contends that counsel rendered ineffective assistance by failing to present a meaningful defense and by conceding the elements of the misdemeanor offense. In addition, defendant contends that the trial court improperly imposed a 362-day term for the misdemeanor, that a clerical error was made in the abstract of judgment regarding the ordered court security fee, and that he is entitled to additional presentence custody credits. The Attorney General concedes that a 362-day term for the misdemeanor is unauthorized and that the abstract of judgment must be corrected. We agree with these concessions, but find no other prejudicial error.
Defendant has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel, which we ordered considered with the appeal. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)
BACKGROUND
Defendant was charged by first amended information with battery by a prisoner on a non-prisoner (§ 4501.5) and misdemeanor destruction of evidence (§ 135). The information further alleged that defendant had a prior conviction that qualified as a strike (§ 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). The trial court granted defendant’s request to bifurcate trial on the prior allegations, and defendant waived a jury trial on the allegations.
Trial evidence
Around 10:00 a.m. on August 27, 2003, Soledad Correctional Training Facility (CTF) housing unit officer Anthony Marquez was in dorm 7, which houses 80 inmates, doing a security check. When Marquez walked around a corner he saw two inmates, defendant and Mr. Rubalcava, near the locker for defendant’s upper bunk. Defendant and Rubalcava looked in Marquez’s direction and their eyes opened wide, as though they were surprised. As Marquez approached the inmates, Rubalcava handed something to defendant. Defendant put his hand around the object and Marquez could not see what it was. Defendant went to the locker for Rubalcava’s lower bunk and stood with his back to Marquez, so Marquez could not see defendant’s hands. Defendant then went to the lower bunk, put his hands underneath a blanket, and stood up.
Marquez told defendant and Rubalcava to put their hands on the wall and to remain there. They complied. Marquez opened the locker for the lower bunk, which was ajar, and looked inside. He then looked on top of the locker and on the top bunk, where he saw a cup of coffee. When Marquez bent down towards the lower bunk in order to check it, defendant became agitated and approached Marquez. Marquez told defendant to return to the wall, and he complied. Marquez lifted a folded-up blanket that was on the foot of the lower bunk and saw a syringe; a razor blade; a clean ball of cotton; and a small ball of tar-like substance, smaller than an M&M and consistent with black-tar heroin, wrapped in plastic. Marquez put the blanket back over the contraband and reached for his radio to call for backup.
Inmates are permitted to possess instant coffee.
Defendant again came towards Marquez and did not comply when Marquez told him to return to the wall. Marquez then told defendant to get down on the ground and pushed the emergency alarm on his belt. An alarm sounded and a light went on. Defendant rapidly came towards Marquez, so Marquez put one arm out in front of him and a hand on his pepper spray and told defendant to stop. Defendant lowered his right shoulder and ran into Marquez, hitting Marquez in the midsection under his arm. Marquez was knocked back about four feet into a locker.
Defendant turned, lifted up the blanket, and started to scoop up the contraband with both hands. Marquez took out his pepper spray and told defendant that he would spray him. When defendant did not stop, Marquez sprayed him but the spray hit defendant in the back of the head and did not seem to affect him. Defendant ran to the bathroom, which was 30 to 40 yards away. Marquez started after defendant but Rubalcava stepped into his path. Marquez lost and regained his balance, then ran after defendant. When Marquez entered the bathroom, defendant was kneeling down and had one hand in a toilet and the other hand on the toilet plunger, causing the toilet to continuously flush.
Marquez told defendant to get down on the ground, but defendant did not comply; defendant continued flushing the toilet. He then got up, walked towards Marquez with his arms outstretched, shrugged his shoulders and said, “ ‘It’s just coffee, Marquez.’ ” Marquez again told defendant to get down on the ground and, when defendant did not comply, Marquez sprayed him in the face with pepper spray. Defendant closed his eyes but did not get down on the ground. Marquez grabbed defendant’s arm, turned him around, put handcuffs on him, and gave him to another officer, who took defendant outside.
Marquez returned to defendant’s bunk area. Other officers responded and searched the area while Marquez went to have his back checked. An officer found two syringes with caps, four syringe plungers and four needles in a brown paper bag in Rubalcava’s locker. As a result of being pushed into a locker, Marquez had some soreness and redness on his lower back but no serious injuries.
Soledad CTF investigative officer David Dogietto testified as an expert in controlled substances that black tar heroin is a very dark, shiny, sticky substance. Black tar heroin about the size of an M&M would be about one quarter gram, and would constitute four or five doses. A dose can be heated with water, pulled up into a syringe through a piece of cotton, and injected.
Verdicts, Findings on the Priors, and Sentencing
On November 10, 2004, the jury found defendant guilty of battery by an inmate on a non-inmate (§ 4501.5) and destruction of evidence (§ 135). The court found the prior allegations to be true. On July 14, 2005, the prosecutor conceded that the section 667.5 allegation was improperly charged. The court denied defendant’s request to strike the prior strike and sentenced defendant to the doubled lower term of two years, the sentence to be served consecutive to whatever sentence defendant was then serving. The court also ordered defendant to pay a $20 court security fee and granted him 362 days presentence custody credits.
DISCUSSION
Prison Attire and Physical Restraints
The record discloses that defendant appeared at trial in prison attire and physical restraints. During motions in limine, defense counsel requested that defendant’s right hand be unshackled so that he would be able to write.
During his testimony, Marquez identified defendant as the person “in the orange jumpsuit.” The court instructed the jury pursuant to CALJIC No. 1.04 that “[t]he fact that physical restraints have been placed on a defendant must not be considered by you for any purpose. They are not evidence of guilt, and must not be considered by you as any evidence that he is more likely to be guilty than not guilty. You must not speculate as to why restraints have been used. In determining the issue in the case, disregard this matter entirely.” After the jury retired to deliberate, the prosecutor noted that the court failed to read the parties’ stipulation that defendant was confined in a California state prison. The court responded: “I really don’t think that is a big issue.” “If you don’t prove it, he’s sitting in an orange jumpsuit and some chains.”
Defendant now contends that his rights to due process and a fair trial were violated as the record does not disclose a “manifest need” for any restraints. He argues that he was entitled to be tried in ordinary clothing and without any restraints, and that the trial court manifestly abused its discretion by having him tried by a jury in prison attire and physical restraints. He urges this court to decide the issue on the merits despite his counsel’s failure to object.
Prison attire
“[T]he State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, . . .” (Estelle v. Williams (1976) 425 U.S. 501, 512 (Estelle).) The defendant’s jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. (Id. at pp. 504-505.) However, the court in Estelle found the failure to object to being tried in prison attire “sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” (Id. at p. 513, fn. omitted.)
“Although the right to be tried in civilian clothing is a constitutional right valuable to a fair trial, the right may be waived by a failure to timely object or otherwise bring the matter to the court’s attention. [Citations.] There are two reasons for this limitation. First, the potential harm is of a type that may be avoided if the matter is brought to the court’s attention. A timely objection allows the court to remedy the situation before any prejudice accrues. [Citation.] In addition, there may be instances where for tactical reasons the defendant may wish to be tried in jail garb. [Citations.] Recognizing that the defendant is entitled to be tried in ordinary clothing, an attorney may nevertheless decide, based on the peculiar circumstances of an individual case, not to exercise that right. In such a rare case, courts should be reluctant to interfere with that decision because an attorney may waive his client’s rights as to matters involving trial tactics. [Citation.]” (People v. Taylor (1982) 31 Cal.3d 488, 495-496 (Taylor).)
In this case, there is no indication in the appellate record that defendant’s trial counsel ever objected to defendant appearing before the jury in prison attire. In addition, counsel agreed prior to the jury voir dire that a stipulation be read to the jury that defendant was a prisoner in a California state prison. Thus, defendant waived his right to be tried in civilian clothing. (Taylor, supra, 31 Cal.3d at p. 495; see also People v. Scott (1997) 15 Cal.4th 1188, 1211.)
Physical restraints
In People v. Duran (1976) 16 Cal.3d 282 (Duran), our Supreme Court reaffirmed the rule set out in People v. Harrington (1871) 42 Cal. 165 (Harrington), 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.” (Duran, supra, 16 Cal.3d at pp. 290-291, fn. omitted.) “We believe that 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’s decision to take the stand, all support our continued adherence to the Harrington rule.” (Id. at p. 290.)
“We do not mean to imply that restraints are justified only on a record showing that the accused is a violent person.” (Duran, supra, 16 Cal.3d at p. 292, fn. 11.) “Under Duran, . . . a criminal defendant may be subjected to physical restraints in the jury’s presence upon ‘a showing of a manifest need for such restraints.’ [Citations.] This requirement is satisfied by evidence that the defendant has threatened jail deputies, possessed weapons in custody, threatened or assaulted other inmates, and/or engaged in violent outbursts in court. [Citations.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031 (Lewis).) “Evidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained may warrant the imposition of reasonable restraints if, in the sound discretion of the court, such restraints are necessary.” (Duran, supra, 16 Cal.3d at pp. 292-293, fn. 11.)
“Although the prosecutor may bring to the court’s attention matters which bear on the issue, it is the function of the court, not the prosecutor, to initiate whatever procedures the court deems sufficient in order that it might make a due process determination of record that restraints are necessary.” (Duran, supra, 16 Cal.3d at p. 293, fn. 12.) “However, a formal evidentiary hearing is not required. [Citation.]” (Lewis, supra, 39 Cal.4th at p. 1032.) “A shackling decision will be upheld absent a manifest abuse of discretion. (Duran, supra, 16 Cal.3d [at p.] 293, fn. 12.)” (Lewis, supra, 39 Cal.4th at p. 1032; see also People v. Allen (1986) 42 Cal.3d 1222, 1263; People v. Sheldon (1989) 48 Cal.3d 935, 945.)
“In those instances when visible restraints must be imposed the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant’s guilt. However, when the restraints are concealed from the jury’s view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided.” (Duran, supra, 16 Cal.3d at pp. 291-292, fn. omitted; see also Use Note to CALJIC No. 1.04 (Fall 2006 ed.) pp. 12-13; Judicial Council of Cal. Jury Instns. (2006), Bench Notes to CALCRIM No. 204, p. 36.)
“The defendant, however, must object to the use of physical restraints or the claim will be deemed waived on appeal. [Citations.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 95; see also People v. Chacon (1968) 69 Cal.2d 765, 778; People v. Walker (1988) 47 Cal.3d 605, 629.) “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; see also People v. Ward (2005) 36 Cal.4th 186, 206 (Ward).) “Defendant’s failure to press the court for a ruling [on the necessity for physical restraints] ‘depriv[ed] the trial court of the opportunity to correct potential error.’ [Citations.]” (People v. Ramirez (2006) 39 Cal.4th 398, 450.)
In this case, defendant requested only that he have his right hand unrestrained so that he would be able to write. As defendant concedes in his opening brief, defendant did not preserve the issue for review as, “[w]ith the exception of the request that one of [defendant’s] hands be unshackled, there was no objection by defense counsel to the fact that [defendant] stood trial shackled and in prison garb.” Defendant’s failure to object below to the use of any other physical restraints during trial waives his claim on appeal. (Ward, supra, 36 Cal.4th at p. 206.)
Ineffective Assistance of Counsel
“Defendant has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389.)
Defendant first contends that his counsel rendered ineffective assistance by failing to object to defendant being tried in prison attire and physical restraints.
The record on appeal fails to disclose why counsel did not object to defendant’s appearance before the jury in prison attire and physical restraints. However, there could be a satisfactory explanation for counsel’s failure to object. First, defendant was charged with battery by an inmate on a non-inmate, and counsel agreed prior to the jury voir dire that a stipulation be read to the jury that defendant was a prisoner in a California state prison. Thus, the jury was going to be well aware of defendant’s inmate status even if he were not in prison attire. Second, the prosecutor’s trial brief included a request that the court instruct the jury pursuant to CALJIC No. 1.04 that it could not consider for any purpose the fact that physical restraints were placed on defendant. Counsel could have made a tactical decision to have this cautionary instruction read to the jury rather than to seek a determination that physical restraints were unnecessary. (See Duran, supra, 16 Cal.3d at pp. 291-292; see also Taylor, supra, 31 Cal.3d at pp. 495-496.) Third, there is nothing in the record to suggest that the restraints prevented defendant from communicating with counsel or from testifying.
Further, it was undisputed at trial that defendant, an inmate at Soledad CTF, pushed Marquez, a correctional officer, into a locker, causing soreness and redness in Marquez’s back but no physical injuries. It was also undisputed that defendant thereafter flushed something down the toilet. Defendant’s defense was that he was “basically trying to get him out of the way, get the stuff, run with it. That’s it.” In this context, any inference that the jury might have drawn about defendant’s guilt from his appearance before them in prison attire and physical restraints does not undermine our confidence in the outcome. Defendant has not carried his burden of showing that counsel rendered ineffective assistance by failing to object to defendant’s prison attire and physical restraints. (People v. Maury, supra, 30 Cal.4th at p. 389.)
Defendant also contends that his counsel’s failure to present a meaningful defense and counsel’s concession of all the elements of the misdemeanor count in closing argument constitutes ineffective assistance.
“In resolving these claims, ‘we must “assess counsel’s overall performance throughout the case” [citation], evaluating it “from counsel’s perspective at the time of the alleged error and in light of all the circumstances. [Citation.]” [Citation.]’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 335.) Conceding some measure of a defendant’s culpability can be a valid tactical decision in light of the evidence presented at trial. (Ibid.; People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187 (McPeters).)
Counsel argued to the jury in part: “What makes, I think Officer Marquez’s statements somewhat questionable, and I think this is what I would like you to talk about, is whether or not in fact he really was assaulted by my client Mr. Vinson, because he said essentially, Oh, well, yeah, he did push me back. I put my hands down. And then later on he said, Well, I don’t really think he was trying to hurt me at all. I think what he was trying to do, if anything, was get whatever it was in the blanket.
“And essentially what I’m arguing to you at this point is, is that force was not done in a rude manner, in an insolent manner, in an angry manner. The fact – the reason why I say that Mr. Vinson had another great opportunity in the bathroom to confront Officer Marquez if he was really wanting to hurt Officer Marquez or really hit him, he could have done it then as well. I mean sure, the district attorney will argue, Well, yeah, he’s got rid of the evidence. What’s he going to do now?
“Officer Marquez is extremely vulnerable. He’s the only officer there, and I think we all have sort of like maybe Hollywood or movie version of oh my God, we have a solo officer by himself. You have all the inmates there and he’s going to get attacked. That’s not what happened. That is not what happened. I think what happened at the bathroom is sort of illustrative of what Mr. Vinson was trying to do, simply get rid of whatever it was that he had. And in the process I don’t believe he assaulted Officer Marquez.
“Does that – does what Officer Marquez say to you rise to the level that he assaulted Officer Marquez, that he used force and violence on him and that it was willful? That’s what you have to determine. I don’t think it was. I think it rose to him basically trying to get him out of the way, get the stuff, run with it. That’s it.”
There is “a ‘plausible tactical explanation’ for the defense argument in this case, . . . .” (McPeters, supra, 2 Cal.4th at p. 1187.) In light of the evidence at trial, counsel elected to concede that defendant was attempting to get rid of something in order to explain why defendant pushed Marquez out of the way. Counsel’s contention that defendant’s conduct was not willful was a proper argument on an element of the charged felony. (See CALJIC No. 7.37 [in order to find defendant guilty of violating section 4501.5 the jury must find that the use of force was “willful and unlawful”].) As part of this contention, counsel conceded that defendant was guilty of the charged misdemeanor. We find such a concession to be a valid tactical decision given the state of the evidence in this case.
OTHER CONTENTIONS
Misdemeanor Sentence
Under section 19, the maximum term of imprisonment for a misdemeanor is a six-month jail term, “[e]xcept in cases where a different punishment is prescribed . . . .” (Ibid.) The Attorney General concedes, and we agree, that as section 135 does not prescribe a different term, a trial court may not impose a term longer than six months for a violation of that section.
The reporter’s transcript indicates that the court did not impose sentence on count 2, the violation of section 135. The clerk’s minutes and the abstract of judgment indicate that the court imposed a 362-day term for count 2, with 362-days credit. The court granted defendant 362 days custody credits, but the credits were granted against the four-year term the court imposed on count 1. Accordingly, the abstract of judgment must be modified by striking the 362-day term imposed on count 2.
Court Security Fee
The reporter’s transcript and the clerk’s minutes indicate that the court ordered defendant to pay a $20 court security fee. (§ 1465.8, subd. (a)(1).) However, the abstract of judgment indicates that the ordered fee was $200. The Attorney General concedes, and we agree, that the abstract of judgment must be modified by correcting the amount of the ordered fee.
Presentence Custody Credits
The probation officer’s report states that, at the time of the current offenses, defendant was serving a four-year term imposed on December 26, 2000, and that he “was paroled on November 14, 2004 to the Monterey County Jail.” Accordingly, defendant’s presentence custody credits were calculated from November 14, 2004, to July 14, 2005, the day he was sentenced. The court calculated the credits as 362 days, consisting of 242 actual days plus 120 good/work time credits. (See §§ 2900.5, 4019.)
Defendant contends, as he did in a sentencing memorandum below, that he is entitled to additional presentence custody credits. He concedes that he was not delivered to the Monterey County Jail until November 15, 2004, but argues that he had served his entire sentence on the prior offense as of June 15, 2004, his minimum adjusted release date as of July 9, 2003, and therefore any time he spent in custody after that date must be attributed to the current offense. He claims that, as the Department of Corrections never held a hearing to determine whether he forfeited any custody credits as a result of the current conviction, his minimum adjusted release date remained as June 15, 2004.
Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever on a defendant’s liberty. (People v. Wiley (1994) 25 Cal.App.4th 159, 165; People v. Bruner (1995) 9 Cal.4th 1178, 1191.) As defendant concedes that he was not released on parole for the term imposed on a prior offense until November 15, 2004, the trial court properly calculated defendant’s presentence custody credits in this case from November 15, 2004.
DISPOSITION
The abstract of judgment is ordered modified by striking the 362-day term imposed on count 2, and by reducing the ordered court security fee from $200 to $20. As so modified, the judgment is affirmed. The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., duffy, J.