P. v. Garcia

Filed 8/31/06 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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, David M. Gill, Judge. Affirmed and habeas petition denied.

A jury convicted Felipe Garcia of carjacking (Pen.Code, § 215, subd. (a)) and first degree robbery (id., §§ 211, 212.5) while personally using a firearm (id., §§ 12022.53, subd. (b), 12022.5, subd. (a)(2)). Garcia admitted three prison priors, and was sentenced to prison for 18 years.

This opinion addresses both the direct appeal and the consolidated petition for a writ of habeas corpus. On appeal, Garcia contends that he was denied his right to due process and a fair trial because (1) jurors observed him in the hallway of the courtroom being transported in restraints and (2) the trial court did not sua sponte instruct the jury that it should not draw any inferences from that fact. We conclude that these arguments lack merit; accordingly, we affirm.

In his habeas petition Garcia alleges (1) that his constitutional rights were violated because he was "forced" to continue to represent himself at trial, even after he suffered a serious injury and was allegedly no longer competent to provide self-representation; and (2) that harassment by a sheriff's deputy assigned to oversee the pro se inmate jail unit prevented him from adequately preparing for trial and posttrial proceedings, thereby violating his right to due process and self-representation. As we will explain, we conclude that Garcia has failed to establish a prima facie case in support of his habeas petition. Accordingly, we deny the petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution's evidence at trial established that in January 2002, while Garcia was in Fidel Mora's apartment with Mora, Marcos Garcia (Marcos) and Macio Watts, Garcia pulled out a gun and ordered Marcos to tie up Watts with a lamp cord. Garcia then took Watts's wallet and car keys and drove off in Watts's car. Before leaving, Garcia took the phone from the apartment and threatened to hurt anyone who called the police. Watts later recovered his car with several items missing from it. Mora, Marcos and Watts testified at trial and identified Garcia as the perpetrator. The jury convicted Garcia of carjacking and first degree robbery.

Before the trial at issue in this appeal, an earlier jury found Garcia guilty, but we reversed that conviction because the trial court erroneously failed to consider Garcia's request for self-representation. (People v. Garcia (Jan. 9, 2004, D041493) [nonpub. opn.].) We remanded, stating that "the matter is remanded for a hearing on whether Garcia is competent to represent himself and knowingly wishes to do so. If the court finds he is competent to represent himself, it shall hold a new trial. If the court finds Garcia is not competent to represent himself or knowingly chooses not to do so, the jury verdict and sentence will take effect."

Garcia chose to represent himself on remand, assisted by privately retained cocounsel. A jury panel was selected, and trial was set to begin. However, before the trial began Garcia sustained serious injuries from an assault in jail. The injuries included a shattered jaw, a broken collar bone, and injury to Garcia's eyes and back. According to Garcia, the injuries also included impairment to his memory and his ability to focus. Because of Garcia's injuries, the jury panel was dismissed and the trial was continued for several months.

When the proceedings resumed, the trial court held two lengthy hearings at Garcia's request to determine whether, in light of his recent injuries, Garcia would continue to represent himself. The trial court made it unequivocally clear that it was Garcia's choice whether to represent himself at trial. In the trial court's view, although our opinion remanding the action for further proceedings had stated that "[i]f the court finds Garcia is not competent to represent himself or knowingly chooses not to do so, the jury verdict and sentence will take effect," that direction applied only to the circumstances immediately following remand. The trial court viewed Garcia's recent injuries as a new circumstance to be dealt with by giving Garcia the right to elect whether to continue with his self-representation. With this understanding, Garcia chose to continue to represent himself, and the trial proceeded.

During trial, Garcia was not physically restrained while in the courtroom and was dressed in civilian clothing. Before trial began (and before Garcia sustained his injuries), the court explained to Garcia that jurors might see him in custody while he was being transported within the courthouse. The trial court inquired whether Garcia would like it to instruct the jurors not to draw any inferences from Garcia's custodial status. Garcia requested that the trial court not give such an instruction. After the delay caused by Garcia's injuries, the trial court again addressed the issue. The court reminded Garcia that although it would "make every effort to minimize [Garcia's] exposure to the public as he's brought to and from the courtroom, there's no guarantee that some of our jurors won't see him while he's being transferred back and forth through the courthouse, because at that time he's restrained, and its fairly obvious he's in custody." The trial court told Garcia it would not mention his custodial status "unless you want it mentioned." Garcia again did not request that the jury be instructed regarding his custodial status.

During trial, Garcia brought to the court's attention that on two separate occasions jurors had seen him in restraints while he was being transported to the courtroom. On the first occasion, according to Garcia, several jurors saw him in chains and shackled to other inmates as they were being transported to the courthouse in the morning. On the second occasion, according to Garcia and confirmed by the bailiff, one juror saw Garcia being led into the main courthouse hallway with his hands in chains during the lunch hour. The trial court twice asked Garcia if he wanted it to do anything in response to these incidents. Garcia again did not make a request that the jury be instructed regarding his custodial status.

II

DISCUSSION

A. Garcia's Appeal

In his appeal, Garcia presents two arguments arising from the fact that the jurors saw him being transported through the courthouse in restraints. First, Garcia argues that he was denied his right to due process and a fair trial because inadequate measures were taken to attempt to prevent the jurors from seeing him in physical restraints. Second, he argues that the trial court erred in failing to sua sponte instruct the jurors that they should draw no inferences from Garcia's custodial status.

1. Garcia Has Not Established That the Trial Court Committed Reversible Error by Failing to Take Further Measures To Prevent Jurors From Seeing Garcia in Restraints While Being Transported

We first address Garcia's argument that his due process and fair trial rights were violated because the trial court took inadequate steps to prevent him from being seen in restraints by jurors while in transport, even though the trial court stated that it would take steps to minimize the possibility. As we explain, this argument fails because (1) case law establishes that the brief viewing of a criminal defendant in restraints outside of the courtroom while he is being transported does not prejudicially affect the defendant; (2) Garcia has not established that the court failed to take steps to prevent the jury from seeing him in restraints; and, in any event, (3) Garcia has waived the argument by not requesting that the trial court take specific additional steps.

We begin with an overview of the rules that apply generally to the shackling of defendants in the courtroom during a jury trial. Our Supreme Court has established 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." (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).) Further, "in any case where physical restraints are used those restraints should be as unobtrusive as possible, although as effective as necessary under the circumstances." (Id. at p. 291.) Recently, the United States Supreme Court has confirmed that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial." (Deck v. Missouri (2005) 544 U.S. 622, 629 (Deck).)

These standards exist because a criminal defendant's "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." (Duran, supra, 16 Cal.3d at p. 290.) "[T]he use of shackles at trial 'affront[s]' the 'dignity and decorum of judicial proceedings that the judge is seeking to uphold,' " "can interfere with a defendant's ability to participate in his own defense," and undermines the presumption of innocence because it "suggests to the jury that the justice system itself sees a 'need to separate a defendant from the community at large.' " (Deck, supra, 544 U.S. at pp. 631, 630.)

With this background in mind, we discuss three separate grounds upon which we reject Garcia's argument that he was denied his right to due process and a fair trial when the trial court failed to take adequate steps to minimize the possibility that jurors would view him in restraints while he was being transported through the courthouse.

First, we reject Garcia's argument on the ground that he cannot establish any prejudicial error from a brief glimpse of him by jurors during transport within the courthouse Courts have repeatedly distinguished the situation of a defendant who is shackled in the courtroom during trial from the situation of a defendant who is viewed in restraints by jurors only briefly, such as while being transported through the courthouse. "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. Tuilaepa (1992) 4 Cal.4th 569, 584, 585 (Tuilaepa) [concluding that "[a]ny glimpse jurors might have received of the restraints as defendant entered the courtroom could not possibly have shocked them or affected their assessment of the evidence"]; see also Duran, supra, 16 Cal.3d at p. 287, fn. 2 [brief period of observation inside or outside of the courtroom does not constitute prejudicial error]; People v. Rich (1988) 45 Cal.3d 1036, 1085 ["even assuming the jurors at times briefly saw defendant being escorted in shackles and handcuffs to the courtroom or the restroom, defendant was not prejudiced thereby"]; People v. Cunningham (2001) 25 Cal.4th 926, 988 ["Brief glimpses of a defendant in restraints have not been deemed prejudicial"].) Here, because Garcia was viewed only briefly by jurors while in transport through the courthouse, he was not prejudiced.^[1]

Second, Garcia has not established a factual basis for the claim that the trial court failed to take steps to minimize the possibility that jurors would see him in restraints. In fact, the only evidence in the record is to the contrary. When the trial court questioned the bailiff about the lunchtime incident, the bailiff indicated that when a defendant is transported with his hands in chains, the bailiffs "make an extra effort" to "hide the chains under his jacket." Further, the details of the incident show that the bailiff made every effort to minimize Garcia's contact with the juror. The incident occurred when Garcia was being transported from a holding area into the courtroom hallway. The bailiff "had just opened the door to make sure it was clear to come out," and the juror "was just then passing by." Garcia briefly made eye contact with the juror, but the bailiff then minimized any further contact by turning Garcia around to face the wall as the juror passed by.

Third, because Garcia did not ask the trial court to take specific steps to prevent jurors from seeing him in restraints during transport, he has waived the issue on appeal. The doctrine of waiver applies when a defendant fails to object to being shackled during trial. (See Tuilaepa, supra, 4 Cal.4th at p. 583 ["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"].) On appeal, Garcia suggests that the trial court should have instituted the practice of bringing him into the courtroom sufficiently in advance of the jury's arrival and instructing the jury to remain in the jury room during short breaks in the day. However, Garcia made no such request to the trial court, even when the trial court brought up the issue and explained that jurors would likely see him in restraints while he was transported through the courthouse. Thus, Garcia has waived the argument on appeal.

2. The Trial Court Was Not Required To Give a Sua Sponte Instruction to the Jury

Garcia's second argument focuses on the trial court's failure to give a sua sponte instruction to the jury after Garcia brought to the trial court's attention that jurors had seen him being transported in restraints. We conclude that there is no merit to Garcia's argument.

The general rule is that "[i]n 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." (Duran, supra, 16 Cal.3d at pp. 291-292.) However, as established in People v. Jacobs (1989) 210 Cal.App.3d 1135, 1140, this rule does not apply when the criminal defendant is viewed in restraints while in transport through the courthouse. As Jacobs explained, "where one or more jurors or veniremen merely witnessed defendant being transported to or from the courtroom in visible restraints the trial court has no duty, sua sponte, to instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt." (Id. at p. 1141.) As a sound basis for its conclusion, Jacobs noted that (1) "[t]he 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"; (2) "[i]t has . . . been established that it is legally permissible to transport a prisoner to the courtroom in physical restraints"; and (3) "it 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." (Ibid.)^[2]

Following Jacobs, we conclude that the trial court was not required to give a sua sponte instruction to the jury. On the contrary, the trial court followed the proper procedure by giving Garcia a choice of whether to request an instruction. (See Jacobs, supra, 210 Cal.App.3d at p. 1142 [if jurors have seen the defendant in restraints during transport, "upon request by the defense, the trial court must instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt," italics added].) When Garcia declined to make such a request, the trial court properly refrained from giving an instruction.

B. Garcia's Petition for a Writ of Habeas Corpus

We next consider Garcia's habeas petition. Garcia alleges two grounds for relief. First, he argues that he was "forced" to represent himself on retrial even though he had suffered a serious injury and was not competent to do so. Second, he argues that alleged harassment by a sheriff's deputy assigned to oversee the pro se inmate jail unit prevented him from adequately preparing to defend himself at trial and thus violated his right to due process and his right to self-representation. As we will explain, both grounds for relief are without merit.

1. Applicable Standards

In analyzing Garcia's petition, we inquire whether he has stated a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) "Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief . . . ." (Id. at p. 474.) "The petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.] 'Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief . . . .' " (Ibid.) "We presume the regularity of proceedings that resulted in a final judgment [citation], and . . . the burden is on the petitioner to establish grounds for his release." (Ibid.) If a prima facie case is lacking, we will deny the petition. (Id. at p. 475.)

2. There Is No Factual Basis for Garcia's Claim That He Was Forced To Represent Himself

Garcia first claims that he was improperly forced to continue to represent himself, even after he had sustained severe injuries, because we stated in our previous opinion that "[i]f the court finds Garcia is not competent to represent himself or knowingly chooses not to do so, the jury verdict and sentence will take effect."

Our review of the relevant trial transcripts show that this claim has no basis in fact. The trial court made clear to Garcia that he was entitled to a retrial whether or not he chose to continue to represent himself. The record shows that the trial court held two lengthy hearings to help Garcia decide whether to continue to represent himself after he was seriously injured, and at both of those hearings the trial court emphasized that because his injuries constituted a changed circumstance, our previous direction on how the case should be handled on remand would not prevent Garcia from going forward with the retrial if he chose to no longer represent himself. There is no indication in the record that Garcia continued to choose to represent himself because he thought, despite the trial court's clear statement to the contrary, that he was forced to do so by our opinion.

Because there is no factual basis for Garcia's claim that he was forced to continue to represent himself, he has failed to establish the required prima facie entitlement to relief.

3. Garcia Has Failed to Support His Claim That the Alleged Harassment by a Sheriff's Deputy in Jail Affected His Right to a Fair Trial or Self-Representation

Garcia's second claim is that he was prevented from receiving a fair trial or adequately representing himself because he was harassed by a sheriff's deputy while in jail during trial and posttrial proceedings.

We have reviewed the materials submitted by Garcia in support of his claim. Without evaluating whether there is evidence that the harassment actually occurred, we conclude that Garcia has not submitted evidence establishing that the alleged harassment impacted his ability to adequately represent himself during trial and posttrial proceedings. In fact, the record before us in Garcia's appeal shows that Garcia extensively participated in all phases of the proceedings and, when necessary and appropriate, was accommodated by the trial court when difficulties were posed by his status as an incarcerated defendant representing himself in pro per. Garcia has, accordingly, failed to state a prima facie case for relief.

DISPOSITION

In case No. D046447 the judgment is affirmed. In case No. D047820 the petition is denied.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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^[1] Garcia cites case law establishing that the trial court has a duty to consider any other reasonably available alternatives to the shackling of a defendant. (See, e.g., People v. Jackson (1993) 14 Cal.App.4th 1818, 1825 ["If the trial court finds that there is a necessity for physical restraints, the physical restraints used should be as unobtrusive as possible"].) However, these authorities do not support Garcia's argument because they all deal with the shackling of a defendant in the courtroom during trial. Here, because no prejudice arises when a defendant is briefly seen in restraints during transport, reversible error does not occur when a trial court fails to consider additional measures to prevent such an occurrence.

^[2] Focusing on language in People v. Givan (1992) 4 Cal.App.4th 1107, 1117 (stating that a sua sponte instruction should be given where "physical restraints are imposed in view of the jury") and Duran, supra, 16 Cal.3d at pages 291-292 (stating that an instruction is required "when visible restraints must be imposed"), Garcia argues that Jacobs was wrongly decided. Garcia posits that Duran and Givan focused simply on whether jurors had viewed the restraints, and thus did not endorse the distinction announced in Jacobs between whether the restraints were viewed in the courtroom or outside the courtroom. Garcia's citations to Givan and Duran are not persuasive. In those cases, the defendants were shackled during trial, including while testifying. Thus neither Givan nor Duran had occasion to address whether a sua sponte instruction is required when jurors view a defendant in restraints outside the courtroom. That issue was persuasively addressed in Jacobs, and we therefore follow its guidance here.