Opinion
D069913
03-23-2017
THE PEOPLE, Plaintiff and Respondent, v. DONTA WALTERS, Defendant and Appellant.
John N. Aquilina, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263903) APPEAL from a judgment of the Superior Court of San Diego County, Margo L. Lewis, Judge. Affirmed. John N. Aquilina, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Donta Walters of pimping (Pen. Code, § 266h, subd. (a)), and Walters admitted a prison prior (Pen. Code, § 667.5, subd. (b)). The court imposed a five-year prison term.
Walters contends his due process rights were violated because one or more jurors saw him in shackles while he was being transported to and from the courtroom. We determine Walters forfeited this contention because his counsel did not object or ask for a curative instruction. We reject Walters's alternate argument that his counsel provided ineffective assistance by failing to assert a timely objection.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole appellate issue concerns the use of security measures while escorting Walters in the courthouse, we only briefly summarize the evidence underlying Walters's criminal conviction.
In September 2015, police officers conducted an undercover investigation into possible prostitution at a motel. During this investigation, police officers stopped a woman suspected of being a prostitute (referred to as Miranda). While the officers were questioning Miranda, they saw Walters in a car near Miranda's motel room. Walters appeared surprised to see the police officers.
Three months later, a federal marshal was assigned to search for Walters, who had an outstanding warrant. Later that day, the marshal arrested Walters with the assistance of police officers.
At the time of the arrest, police officers seized from Walters $19,000 in cash, Miranda's debit card, and Miranda's cell phone. A search of the phone revealed photographs and text messages consistent with pimping by Walters. While in jail, Walters made phone calls to Miranda consistent with conversations between a pimp and prostitute.
In his trial testimony, Walters claimed Miranda was his girlfriend and that he was aware she worked as an escort. Walters denied he acted to solicit or profit from prostitutes and denied knowing Miranda engaged in prostitution.
DISCUSSION
Walters contends his due process rights were violated when jurors observed him in shackles. He maintains the trial court erred when it "did nothing to ensure the protection of [his] constitutional rights of due process and a fair trial, uninhibited of being physically shackled in the presence of the jury."
I. Relevant Factual Background
Fifty prospective jurors were initially called to the courtroom for Walters's trial. After about one and one-half hours of voir dire, the court took a 15-minute recess. Before the jury returned, the court advised counsel that "one of the prospective jurors saw defendant being walked through the hallway in chains." Defense counsel did not object, ask for a jury admonition, or request that this prospective juror be excused.
The next morning, before voir dire resumed, the court informed counsel outside the presence of the jury that "juror[ ] number[s] 40 and 6 have both seen the defendant dressed out but in chains being escorted to the courtroom." Defense counsel again did not raise any objection, ask for a jury admonition, or request that the prospective jurors be excused. Later that day Juror No. 6 was excused for cause.
The trial then lasted three days. The trial record does not contain any indication the jurors again saw Walters while he was being escorted in the hallway or that Walters was physically restrained while he was in the courtroom.
About one month after the jury returned the guilty verdict, Walters moved for a new trial on several grounds, including that the jurors were prejudiced because they saw him in shackles. Walters produced no supporting evidence (such as his own declaration, or a declaration from his counsel, a juror, or the bailiff) to explain the circumstances of the claimed viewings. Instead, his trial counsel asserted the following in his memorandum of points and authorities:
"On at least one occasion, Mr. Walters was led out of the courtroom and down the courthouse corridor in the direct path of exiting jurors. During the trial, Mr. Walters encountered at least one juror while shackled at the waist. On various occasions, jurors #10, 12, and alternate #1 all saw Mr. Walters in shackles. Only one of the incidents was addressed on the record. The court asked the bailiff for information about the incident. The bailiff verified that a juror saw Mr. Walters in the hallway while he was shackled. The Defense declined to make a formal motion at that time. Instead, Defense formally raises the issue now in this motion."
The People opposed the motion on numerous grounds, including that Walters did not provide any evidentiary support for his assertions; Walters did not preserve the issue by asserting a timely objection; the claimed juror observations were harmless because the jury knew Walters was in jail based on evidence of Walters's recorded jail telephone conversations; and there was no prejudice because "the evidence of the defendant's guilt was overwhelming."
After a hearing, the trial court denied Walters's new trial motion, stating:
"[T]his was an issue that was raised . . . at least on one occasion when it was brought to my attention and nothing was raised at the time [by defense counsel] which . . . would have been the appropriate time to raise any concern. . . . [Additionally] there was no mystery to the fact that Mr. Walters was in custody . . . . [The] jury heard phone calls from the jail which were recorded. [Jurors would not expect Walters to be] personally milling around between sessions.
[T]he court does not find there was any prejudice to Mr. Walters based on the fact that possibly one or two jurors may have seen him in shackles. . . . The motion was made after the fact, so we cannot even confirm whether that actually happened and if it had any effect on the jury who may or may not have seen this."
II. Applicable Legal Principles
"When a defendant is charged with any crime . . . his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged." (People v. Duran (1976) 16 Cal.3d 282, 290 (Duran).) To avoid the potential for prejudice, "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." (Id. at pp. 290-291, italics added; see also People v. Jackson (1993) 14 Cal.App.4th 1818, 1828 [holding that a court may not adopt a general policy of restraint within the courtroom].)
These rules do not apply when a defendant is being escorted through the "public hallways of a courthouse." (People v. Cunningham (2015) 61 Cal.4th 609, 632.) Because the "considerations of public safety and the need for restraints are different during prisoner transport[,] . . . a defendant may be restrained while in transit between a jail and courtroom without reference to any particularized showing of need." (Ibid.; see People v. Metzger (1904) 143 Cal. 447, 449.) Law enforcement officials have broad discretion to determine the transport security measures that will best protect public safety and prevent escape. (Cunningham, supra, 61 Cal.4th at p. 632.) Consistent with these principles, a trial court has no duty to sua sponte instruct a jury if the jurors observed the defendant being transported to or from the courtroom. (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141.)
Walters devotes most of his appellate briefing to discussing the legal principles protecting a defendant's rights to be free of physical constraints in the courtroom, and a trial court's duties in protecting those rights. (See Duran, supra, 16 Cal.3d at pp. 290-291.) Although these points may be well taken, they are inapplicable to this case. There is no evidence in the record showing that Walters was physically restrained in the courtroom. Thus, we reject Walters's arguments that are based on decisions involving security measures taken in the courtroom.
III. Analysis
A. Walters Forfeited Contention by Failing to Raise Contemporaneous Objection
The court minutes show the court twice informed counsel that certain prospective jurors saw Walters with restraints in the public hallways during the voir dire phase of the trial. But the record also reflects that Walters's counsel did not take any responsive actions. He did not object, request that law enforcement use lesser restraints, ask for a curative instruction, or request that the affected prospective jurors be excused.
On this record, Walters forfeited the challenge. (See People v. McWhorter (2009) 47 Cal.4th 318, 375; People v. Tuilaepa (1992) 4 Cal.4th 569, 583; People v. Stankewitz (1990) 51 Cal.3d 72, 95.) Contrary to Walters's suggestions, the court had no sua sponte duty to admonish the jurors or implement any other remedial measures. (People v. Jacobs, supra, 210 Cal.App.3d at p. 1141.)
This conclusion applies even though Walters later raised the issue in a new trial motion. (See People v. Memory (2010) 182 Cal.App.4th 835, 856, fn. 6.) "[A] party may not remain quiet, taking his chances upon a favorable verdict, and, after a verdict against him, raise a point of which he knew and could have raised during the progress of the trial." (Gray v. Robinson (1939) 33 Cal.App.2d 177, 183.) These concerns are particularly important here because by failing to raise a contemporaneous objection, Walters precluded factual development of the issues. The record is unclear whether any jurors who were ultimately on the jury panel saw Walters with physical restraints and the circumstances under which any such observations occurred.
B. Ineffective Assistance of Counsel Claim
In his reply brief, Walters contends his counsel was constitutionally ineffective for failing to object to the shackling during trial. The argument is untimely. An appellate court will "not consider an argument first raised in a reply brief, absent a showing why the argument could not have been made earlier." (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.)
Even assuming Walters timely asserted the issue on appeal, the contention still fails. To prevail on an ineffective assistance claim, a defendant must establish two elements: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Walters has not satisfied either prong.
The first prong is met only "if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) In this case, counsel could have reasonably concluded that any objection to the security measures would likely have been overruled. As noted, law enforcement officials have broad discretion to provide security while a defendant is in transit in a public area of the courthouse, and a court's approval of these measures is unnecessary. (People v. Cunningham, supra, 61 Cal.4th at p. 632.) This rule applies with particular force in the existing San Diego County courthouse where it is generally not feasible in practical terms to avoid the public hallways when escorting defendants to and from the courtrooms. Because the use of restraints during transport is within law enforcement's sound discretion, defense counsel could have reasonably decided that an objection would have been without merit. Counsel's decision to forego a meritless objection is not deficient performance. (People v. Lucero (2000) 23 Cal.4th 692, 732.)
Additionally, although defense counsel could have obtained a curative instruction when the court raised the issue of the juror observations during voir dire, defense counsel could have reasonably concluded it would be unwise to request an instruction that would highlight Walters's custody status to the entire jury. Because only a few prospective jurors observed the shackles, admonishing the entire jury panel might have "invite[d] [increased] attention to the restraints and thus create[d] prejudice which would otherwise be avoided." (People v. Duran, supra, 16 Cal.3d at p. 292.)
Moreover, even if there was no tactical purpose for failing to object or ask for a curative instruction, there was no prejudice. Courts have long held that prejudice does not arise when jurors inadvertently observe a shackled defendant during transportation to and from the courtroom. (People v. Cunningham, supra, 61 Cal.4th at p. 632 [the use of physical restraints during a defendant's transit is a "reasonable and limited precaution" that does not affect "the conduct or outcome of the trial" or "the presumption of innocence or defendant's right to present a defense"]; People v. Cunningham (2001) 25 Cal.4th 926, 988 ["[b]rief glimpses of a defendant in restraints have not been deemed prejudicial"]; People v. Tuilaepa, supra, 4 Cal.4th at p. 584 ["Prejudicial error does not occur simply because the defendant 'was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen.'. . ."].)
We agree with these principles as applied here, and find no prejudice occurred. Walters argues the claimed juror observations were prejudicial because he testified and his credibility was at issue, and the crime (pimping) did not involve violence. These facts are insufficient to show prejudice. The jury was aware Walters was in custody because his jailhouse telephone conversations with Miranda were part of the prosecution's case. Jurors generally understand that prisoners are not allowed to roam freely in the hallways with jurors and other bystanders. "The customary practice of utilizing physical restraints while transporting a prisoner from place to place, e.g., from jail to courtroom and back, is a matter of common knowledge and generally acknowledged as acceptable for the protection of both the public and defendant." (People v. Jacobs, supra, 210 Cal.App.3d at p. 1141.) The jury was instructed not to be biased against Walters because he was arrested or charged with a crime. Walters did not establish undue prejudice in this case.
DISPOSITION
Judgment affirmed.
HALLER, J. WE CONCUR: MCCONNELL, P. J. NARES, J.