P. v. Eberle

Filed 7/31/06 P. v. Eberle CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge, and a petition for writ of habeas corpus. Appeal affirmed in part and reversed in part; petition denied.

James Carlton Eberle was convicted by a jury of rape (Pen. Code,^[1] § 261, subd. (a)(2)), attempted sodomy by use of force (§§ 286, subd. (c)(2), 664), assault with intent to commit a felony (rape) (§ 220), and burglary (§ 459). He admitted prior prison convictions (§ 667.5, subd. (b)), serious felony prior convictions (§ 667, subd. (a)(1), 1192.7, subd. (c)), three strike prior convictions (§§ 667, subds. (b)-(i), 1170.12) and that he was subject to sentencing under the one strike law (§ 667.61, subds. (a), (c), & (d)). The court sentenced him to a total term of 75 years to life (25 years to life for the rape conviction tripled under the three-strikes law) plus six years for the prior serious felony and prior prison convictions. The court imposed a concurrent 25 years-to-life term for the attempted sodomy by use of force conviction and stayed the 25 years-to-life terms for the burglary and assault with intent to commit rape.

On appeal and in a petition for a writ of habeas corpus, Eberle contends the court erred in shackling him during the trial and in refusing to allow him to reopen his case to present a videotape. He also contends he was improperly convicted of both rape and assault to commit a felony (rape). We agree with his last contention and reverse the conviction for assault to commit a felony (rape). Otherwise, we affirm the judgment and deny the petition for writ of habeas corpus.FACTS

On April 9, 2003, C.S. was attacked in a women's restroom at San Diego City College. Her pleas with the assailant to stop were overheard by a male student who entered the restroom, heard a couple of people in one of the stalls and went for help from a nearby classroom. The instructor from the classroom went to the restroom and asked, "What's going on here?" Eberle came out of the stall and brushed by the instructor as he hurriedly left the restroom. As he was leaving the area, he encountered a female student, told her somebody had attacked someone and had just run past him. The female student told him that he needed to stay. Although Eberle clearly wanted to leave, he remained because other people had arrived and insisted he stay. The female student had not seen anyone running past Eberle.

The instructor found C.S. inside the restroom stall, pulling down her sweater, crying, gasping, and with blood on her face. After helping C.S. wash her face, the instructor took C.S. to her classroom. As they passed Eberle and the people around him, the female student asked C.S. if she knew who attacked her. C.S. said yes, she was sure Eberle was the assailant. On the way to the classroom, C.S. asked the instructor if she knew of a rape crisis center. The instructor asked her if she had been raped and she answered yes.

The campus police arrived within minutes. Officer Robert Gonzales noticed C.S.'s neck was red. C.S. told him she had been raped, then denied being raped but later said she had been raped.

C.S. submitted to a sexual assault medical examination. The nurse stated C.S. seemed "very sad" and "soft-spoken" but was otherwise alert, able to answer questions and appeared to be clear about what happened. C.S. provided a detailed description and stated she knew the attacker who was named Jim or Anderson. She said he had put her in a choke hold, raped her and attempted to sodomize her. She had injuries consistent with nonconsensual intercourse. The injuries, however, were also consistent with consensual intercourse. DNA samples were taken. Eberle's sperm was found in C.S.'s vaginal and anal samples.

Eberle did not testify. His defense was based primarily on showing inconsistencies in the testimony of the witnesses, for example, as to whether the male student first heard C.S.'s pleas when he was on a second floor terrace or when he was near the restroom. He presented evidence disputing whether the female student could have seen if anyone had run from the restroom past Eberle from her position inside a building. Primarily, however, he focused on C.S.'s credibility, pointing out inconsistencies in her statements, e.g., as to the name of her attacker, his description, and the details of the assault; her failure to recognize him in the courtroom; and that she suffered from psychotic delusions. These delusions were largely focused on her employment history. She believed she had worked for the Mexicali Police, the Harbor Police, the Federal Bureau of Investigation, the Air Force, and former President Clinton. She specified the length of time she had worked at each place and if it were true, she would have had to start working before she was born.

A psychiatrist who examined C.S. to evaluate whether she could provide herself with food, shelter and clothing determined she was able to do so and was otherwise generally oriented to reality and able to answer questions appropriately. He testified the fact C.S. suffered from a delusional disorder did not mean she was not capable of telling the truth.

DISCUSSION

I

Shackling

Eberle contends the trial court prejudicially abused its discretion by shackling him during the trial without a finding of manifest need.

Factual and Procedural Background

This was Eberle's second trial. The jury in the first trial was unable to reach a verdict and a mistrial was declared. The attorney who had been representing Eberle was granted a motion to be relieved based on a conflict and the alternative public defender was appointed to represent Eberle. The record on appeal does not contain a transcript of the hearing to relieve counsel and, therefore, the nature of the conflict is not contained in the record. Thereafter, Eberle successfully moved to represent himself.

Eberle does not cite when the decision to shackle him was made. The first reference to shackling during the second trial is after a discussion about making a video player available to Eberle during the trial. Eberle stated:

". . . I don't know how else to explain it. If I have to conduct a defense either chained or restricted to this chair, then the jury is going to convict me. They are going to see that. The bias is going to be there. If I were to walk around, of course they are going to want to be right there next to me, which is going to create a problem in and of itself. In a move that maybe the court can agree with and order, I know for a fact that the sheriff's department does have what they call a tazer belt or a shocker belt."

The trial judge indicated he was familiar with a "react belt" and that he had never "had a situation where an in-custody has requested access throughout the courtroom." Eberle clarified that he wanted access only to a portion of the courtroom; he wanted to be able to stand behind a lectern, and would not be approaching any witnesses. The judge took the matter under submission, stating he wanted to consult with his bailiff. The record does not contain an express ruling by the court, however in explaining how voir dire would work, the trial judge explained Eberle and the prosecutor would be sitting at a table facing the audience and there would be a skirt around the table. The court stated, "We'll make every effort to ensure that the jury is not viewing whatever security measure we are using."

The next reference to shackling is during the trial when Eberle made the following request:

"This is regarding the chains. I can understand the court's concerns for security purposes. I'm not asking that they even be considered to be removed prior to the taking of testimony. However, during closing, I am going to ask that I be afforded an opportunity to stand over there and actually talk to the jury and give them the impression that I'm not a prisoner. I have noticed that during the trial, there's been more than a few times where I've asked [the bailiff] to take something up, and I have gotten funny looks for it."

The trial judge said he would "think about it" and talk with "[the bailiff] as to how we are going to conduct closing argument."

After all the witnesses testified, Eberle again raised "the restraint issue." The trial judge again responded he would talk to his bailiff.

Ultimately, the judge denied Eberle's request to address the jury from "in the well." The judge ruled both Eberle and the prosecutor would conduct closing argument from the counsel tables or at a tripod nearby.

Discussion

"[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." (People v. Duran (1976) 16 Cal.3d 282, 290-291; People v. Mar (2002) 28 Cal.4th 1201, 1216.) " '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.' [Citation.] A reviewing court will uphold the decision of the trial court to shackle a defendant, however, absent an abuse of discretion." (People v. Hawkins (1995) 10 Cal.4th 920, 944, disapproved on a different ground in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Blakeley (2000) 23 Cal.4th 82, 89.)

"[T]he 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." (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.)

Courtroom shackling, even if error, will be held harmless "if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense." (People v. Anderson (2001) 25 Cal.4th 543, 596; People v. Combs (2004) 34 Cal.4th 821, 838.)

Here, at the trial level Eberle did not object to being physically restrained during the taking of evidence. Instead, Eberle conceded that physical restraints were proper and merely sought a different method of restraint. Thus, Eberle waived the issue of whether there was a manifest need for physical restraints. Since Eberle waived the issue at the outset of the trial, the court was not required to hold a hearing and make a finding of manifest need in response to Eberle's request to not be restrained during closing argument.

Moreover, even if the court erred in failing to make a finding of manifest need on the record, we would not reverse because the error was clearly harmless. There is no evidence the jury was aware of the shackling. While it is true that Eberle, when requesting not to be shackled during closing argument, stated that "more than a few times" the jury gave him "funny looks" when he asked the bailiff "to take something up," this statement does not establish that the jury saw he was shackled. Instead, it reflects, at most, a possible jury awareness that he was required to remain seated at the defense table, a situation the jury might have believed was reasonably imposed on any defendant who represented himself, regardless of whether he was shackled. Moreover, Eberle's claim the jury saw the shackles is undermined by the fact the court here took specific measures to ensure the jury was not aware of the restraints. During voir dire, the court made arrangements for both Eberle as well as the prosecutor to sit at counsel table with a skirt around it and during closing argument the court required both Eberle and the prosecutor to also remain at the table or at a tripod nearby. Further, this is not a situation where the shackles affected Eberle's testimony since he elected not to testify. The only effect on his ability to represent himself was that he was required to hand items to the bailiff to present to witnesses rather than being able to approach the witnesses himself, a requirement that might have been imposed regardless of whether he was shackled and a requirement that even Eberle acknowledged was proper -- when he asked for use of the "stun belt," he specifically indicated he would not be approaching the witnesses.

Reversal is not merited on this ground.

In support of his petition for habeas corpus, Eberle includes a declaration stating his movements were restricted by the shackles and he noticed jurors looking at his feet when they entered and left the courtroom. He also states that a letter he had written that had been interpreted as threatening various people including the judge in his first trial,^[2] was not a threatening letter but rather consisted of notes to himself about a civil lawsuit he had sent to his mother for safekeeping. Eberle's declaration states Sheriff's Deputy Henry Ramos had told him that no criminal charges would be filed in connection with the letter because an investigation had concluded there was no criminal intent. Eberle's mother submitted a declaration stating Eberle has a habit of sending her letters and other documents for safekeeping. Eberle did not submit a declaration from Deputy Ramos. Nor did he submit any declarations from any of the jurors.

These declarations provide some support for Eberle's contention he did not write a threatening letter. However, elsewhere in his petition for habeas corpus, Eberle admits the trial judge probably had information about his "jail 'difficulties,' " although Eberle stresses that his "courtroom behavior . . . was uniformly courteous and appropriate throughout both trials and during all other court appearances." Security problems within the jail certainly support concerns about security within the courtroom. These security concerns were particularly serious since Eberle was representing himself, had been charged with a violent crime and his accuser would be present in the courtroom. Further, as we noted above, the court took great pains to minimize the visibility of the shackles and the fact the jurors were looking towards Eberle's feet (rather than at his face) when they entered or exited the courtroom does not necessarily establish the jurors were aware he was shackled.

II

Refusal to Reopen Case

Eberle contends the court abused its discretion in failing to reopen the case to allow him to show the jury a videotaped examination of C.S. that was made before the first trial.

Factual and Procedural Background

When C.S. failed to show up for a hearing prior to the first trial, a bench warrant was issued. She was subsequently found and held in custody not only due to the bench warrant but also on the basis of misdemeanor charges. Because she was homeless and suffered delusions, court and counsel were concerned about C.S. appearing for her trial testimony, which was expected to be ten days later. They were also concerned about the legality of holding C.S. in custody more than ten days. Because of these concerns, court and counsel agreed to conduct and videotape a conditional examination. C.S. did appear for her trial testimony at the first trial. The videotaped conditional examination was also shown to the jury during the first trial.

Before the second trial started, Eberle told the court he wanted a video player available during trial so he could show a videotape of the crime scene area made by his investigator and possibly also show the videotape of C.S.'s conditional examination. Eberle showed the videotape of the crime scene to the jury and it was admitted into evidence. Both the defense and prosecution rested without showing the videotaped conditional examination. After discussing jury instructions and the admission of evidence, Eberle asked for admission of the videotaped conditional examination. The prosecutor objected. The court sustained the objection, noting the evidence had not been marked or authenticated.

Analysis

A trial court has discretion to order a case reopened to permit the introduction of additional evidence. (§§ 1093, 1094; People v. Funes (1994) 23 Cal.App.4th 1506, 1520; People v. Ayala (2000) 23 Cal.4th 225, 282.) "In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: '(1) the stage the proceedings had reached when the motion was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.' " (People v. Jones (2003) 30 Cal.4th 1084, 1110.)

Here, Eberle made his request during the noon recess just prior to closing argument and instructions. The videotape was not new evidence. Eberle offered no excuse for failing to timely present it. Presentation of the videotape could have led to the taking of additional evidence about the circumstances of the videotape, including additional evidence by the prosecutor and could have resulted in undue emphasis on C.S.'s testimony during the examination.

Eberle argues since C.S.'s fluctuating mental state was a key issue, the court abused its discretion in not re-opening to allow showing of the videotape. He points out that when C.S. first appeared on September 21, 2004, at the first trial, two days before the conditional examination, the trial judge noted C.S. looked "delusional," appeared to be "out of it," was "not believable" and the judge wondered if she were competent to testify. Eberle also points to the prosecutor's summary of C.S.'s testimony during the first and second trials in a filing after the second trial:

"At the first trial, the victim testified twice, once at a conditional exam and a second time during the actual trial before the jury. When she testified at the first trial, she was very sloppy, in poor health and unable to focus at times. Through lengthy and aggressive cross examination by [defense counsel], she appeared to have serious mental health issues, cognitive difficulties and made some inconsistent statements. In contrast, at[]the second trial, the victim was clean[,] lucid and able to focus. She gave coherent testimony. During cross examination by the defendant, the defendant took a less aggressive approach and did not ask very many questions about her mental illness, family history and the crime. The victim held up better during the second trial."

Eberle argues this summary by the prosecutor shows "[t]he variability of C.S.'s mental state[] and of the resultant quality of her testimony," and therefore showing the videotape was of critical importance to show C.S.'s fluctuating mental state. Eberle overlooks the prosecutor's analysis that much of the difference was due to the different nature of the examinations by Eberle and by the defense attorney in the first trial. Stated otherwise, the failure to demonstrate C.S.'s mental illness and cognitive difficulties was not due to omission of the conditional examination but due to Eberle's ineffective lawyering.

Furthermore, even though Eberle may not have been as effective as defense counsel in the first trial, the fact C.S. suffered from a psychosis and delusions was clearly presented to the jury, including that her mental state was variable. For example, an investigator for the district attorney's office who interviewed C.S. on September 13, 2004, stated that during the interview C.S. was "very distracted," yawned a lot, stared off into space, had difficulty focusing on the questions and was "picking" at her face whereas while being transported to court for testimony during the second trial, C.S. seemed much more focused, more interactive, cleaner and more awake.

Finally, unlike many rape cases, this was not a he said/she said situation where the victim's testimony essentially constituted the case against the defendant. In this case C.S.'s pleas to her assailant were overhead and people intervened immediately. A male student heard a couple of people in the bathroom stall. An instructor saw Eberle as he left the stall. C.S. was clearly distraught when she was found in the restroom. C.S. identified Eberle as her attacker upon leaving the restroom. Eberle's sperm was found in C.S.'s vaginal and anal areas. C.S. had genital injuries that were consistent with nonconsensual sex. She also had redness on her neck consistent with being choked. Given this overwhelming evidence, it is highly unlikely the jury would have acquitted Eberle had they seen the conditional examination.

No reversal is merited on this ground.

III

Conviction of Rape and Assault to Commit Rape

As the Attorney General concedes, it was improper to convict Eberle of both rape and assault to commit a felony since the information specified the felony was rape, assault to commit rape is a lesser included offense of rape and an individual may not be convicted of both a lesser and included offense. (See People v. Ghent (1987) 43 Cal.3d 739, 757; People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) Accordingly, the conviction for assault with intent to commit a felony (rape) must be reversed.

DISPOSITION

The conviction for assault to commit a felony (rape) is reversed and the trial court is directed to prepare an amended abstract of judgment so indicating and is further directed to forward a certified copy of the amended abstract to the Department of Corrections. In all other respects, the judgment is affirmed. The petition for writ of habeas corpus is denied.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] We note in oppositions to Eberle's pre- and post-trial motions for discovery sanctions the prosecutor indicated Eberle had been in jail, had made threats against prosecution witnesses, judges, people in the prosecutor's office, jail guards and had threatened to use lethal force against any sheriff's deputies whom he perceived as a threat. Jail staff notified the superior court of Eberle's threatening letters. It is highly likely the trial judge was aware of this disruptive and threatening behavior, conduct that provided a manifest need for physical restraints.