Opinion
F076539
11-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIQ LOPEZ ZUNIGA, Defendant and Appellant.
Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CMS1343)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
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Appointed counsel for defendant Eriq Lopez Zuniga asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
BACKGROUND
On May 16, 2017, a witness called 911 to report an altercation inside defendant's residence. The witness heard a male aggressively yelling and threatening to kick someone out of the house. An officer arrived and observed that a woman in the house had blood under her nose and around her mouth. She was upset and crying. After coming outside, she told the officer she could not cooperate. Distraught and still crying, she kept looking back toward the house.
The next day, another witness saw the same woman running down the street carrying a baby. The woman had red marks on her face and around her neck. She was crying, looked scared, and frantically asked for help. She asked the witness to call the police because someone was beating her up. She did not appear to be under the influence of alcohol. The witness called 911 and told dispatch that the woman said Eriq Zuniga beat her up and was still at the house.
Officers arrived. The woman said she and defendant argued, and defendant punched and choked her. The woman yelled, "[T]hat's him, that's him," when she saw defendant in front of the house. The officers did not notice any signs that the woman was under the influence of alcohol. The woman told an officer, "The cops came out last night. I guess they got a report or something. When they came, he was in the house and I was too scared to say anything. He was beatin' the fuck outta me last night too." She added, "Yeah, the cops came and he told me that if I said anything, he'd fuckin' kill me. So I came out. I told them nothing happened, I fell, and then today he fuckin' started wiggin' out again. I don't know if he's high or what."
On May 25, 2017, the woman wrote a letter to the district attorney's office, requesting that the charges against defendant be dropped.
On August 14, 2017, during jury selection, defense counsel moved for a mistrial after defendant was escorted from the courtroom within view of the prospective jurors. The trial court denied the motion.
On August 15, 2017, defendant was charged in a first amended information with willfully inflicting corporal injury resulting in a traumatic condition upon the mother of his child (Pen. Code, § 273.5, subd. (a)). The information further alleged that defendant committed the present offense within seven years of his conviction of assault with force likely to produce great bodily injury (§§ 245, subd. (a)(4), 273.5, subd. (f)(1)), had suffered a prior felony conviction for assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)) within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served four prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
At trial, the woman recanted. She testified that on May 16, 2017, she had been drinking and she fell out of the back door on the steps and injured herself while roughhousing. This may have caused the blood on her face. Defendant was not even there. The next day, she was drunk and did not recall when she left the house with the baby. She asked someone to call the police because she wanted defendant in jail. She was jealous and mad. She made up the story that he had hit her. The redness she experienced was self-inflicted to get defendant in trouble. He never touched or injured her.
On August 16, 2017, the jury found defendant guilty of the sole charge. Defendant had admitted all the special allegations.
On September 14, 2017, the trial court declined to dismiss a prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court imposed the midterm of four years in prison, doubled pursuant to the Three Strikes law, plus three one-year enhancements for the prior prison terms. The court awarded credits and imposed various fines and fees.
On November 3, 2017, defendant filed a notice of appeal.
DISCUSSION
"A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged ...." (People v. Silva (2001) 25 Cal.4th 345, 372.) "A motion for ' "mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction." ' " (People v. Montes (2014) 58 Cal.4th 809, 888.) "Whether a particular incident is so prejudicial that it warrants a mistrial 'requires a nuanced, fact-based analysis,' which is best performed by the trial court. [Citation.] We review the trial court's order denying a motion for mistrial under the deferential abuse of discretion standard. [Citation.] 'Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.)
The California Supreme Court has "commented upon the effect of reminders of a defendant's custodial status. It is established that a court may not require a defendant to attend trial wearing jail clothing, because such a requirement would impair the presumption that a defendant is innocent unless and until proved guilty beyond a reasonable doubt. [Citations.] 'The Supreme Court has observed that 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. [Citation.]' [Citation.] It may be inferred that other information, having the same tendency to remind the jury that a defendant is in custody, might have a similar effect." (People v. Bradford (1997) 15 Cal.4th 1229, 1335-1336.)
However, "the mere fact that the jury is made aware of a defendant's custodial status does not deprive the defendant of his constitutional rights." (People v. Valdez (2004) 32 Cal.4th 73, 121.) And "an isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury." (People v. Bradford, supra, 15 Cal.4th at p. 1336.) Thus, even observation of the defendant in handcuffs or shackles does not always require granting of a mistrial. The California Supreme Court has noted that brief observations of a defendant in shackles by one or more jurors is generally not prejudicial error. (People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2.) In People v. Jacobs (1989) 210 Cal.App.3d 1135, the Court of Appeal said, "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. It has, in fact, been established that it is legally permissible to transport a prisoner to the courtroom in physical restraints. [Citations.] Moreover, our Supreme Court has noted that is has been generally recognized that brief observations of a defendant in physical restraints by one or more jurors or veniremen either inside or outside the courtroom do not constitute prejudicial error." (Id. at p. 1141; see People v. Medina (1995) 11 Cal.4th 694, 731 ["unless the guilt question is close, allowing the guilt phase jury to briefly view a shackled defendant is ordinarily deemed nonprejudicial error"]; People v. Tuilaepa (1992) 4 Cal.4th 569, 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.' "]; People v. Cunningham (2001) 25 Cal.4th 926, 988 ["Brief glimpses of a defendant in restraints have not been deemed prejudicial."].)
Here, prospective jurors were sitting in the jury box when the court announced a lunch recess. The transport officer, who was participating in his first trial, failed to wait for the prospective jurors to leave the courtroom before escorting defendant to the door of the holding area. Defendant was in civilian clothes and was neither shackled nor handcuffed. Only the one officer escorted him. The door to the holding area bore a small sign that stated "holding." The door required the officer to swipe a card to open it. If a person looked through the open door, he or she would have seen a room with a piece of glass, but no bars or cages.
The trial court immediately recognized the seriousness of the error and noted that the circumstances created a reasonable inference defendant was in custody. The court asked defense counsel if he wished to move for a mistrial, and he did. After consideration of the facts, the court stated:
"Well, I have been sitting in this seat with a clear view of that door for the last year and five months and I couldn't tell you what's there. It looks like a hallway. These jurors, at the very most, would have seen maybe two seconds, maybe three seconds. For them to be able to determine there was a holding cell back there—they can certainly assume that, but from what they could see they didn't see anything that would lead to any prejudice to [defendant].
"The prejudicial part is that he was escorted out by a custodial officer, not what happened—not what's on the other side of that door because there's no bars there. There's no—there's no cages there. It is—it's a glass and you would have to actually go there—in there to figure out what it is and I've even been back there. [¶] ... [¶]
"I think we made a clear record. There's a clear record that there was only one custodial officer, [defendant] is in civilian attire, and while the jury was leaving the courtroom [defendant] was escorted out, unshackled, unhandcuffed, and the Court finds that that is not sufficient to declare a mistrial, however, [defense counsel]—so we're going to continue on with the trial. [¶] ... [¶]
"And, for the record, as well, it's pretty obvious that any defendant that's sitting in a courtroom and is seated by custodial officers, there's a
reasonable inference that he is in custody. Also, [defendant] is never outside the courtroom, as most out-of-custody defendants are. So it's always a reasonable inference that a defendant that's in custody is in custody when he doesn't ever go outside and has two custodial officers seated by him. That is not necessarily prejudicial to the defendant."
The court proposed a possible admonition to the jury, but defense counsel declined, stating, "I think the admonition makes it worse because some of the people would not have seen it and, therefore, would not be influenced by it."
We see no abuse here. The circumstances in this case were far less dramatic than the observation of a defendant being transported in handcuffs or shackles, or the constant reminder of a defendant wearing jail garb. Here, defendant wore civilian clothing and was not physically restrained in any way. There was no constant reminder of his custodial status. If any of the prospective jurors noticed defendant being escorted to the locked door, they likely would not have been surprised to learn that a criminal defendant is not necessarily free to leave the courtroom during breaks in the trial process. The jurors' single exposure to the inference that defendant was in custody was brief and lacking in the dramatic accoutrements of custody. We conclude the trial court did not abuse its discretion in denying the motion for mistrial.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.