P. v. Roberson

Filed 4/10/07 P. v. Roberson CA2/6

Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Maurice Van Roberson was recommitted as a sexually violent predator (SVP) following a jury trial at which he represented himself. (Welf. & Inst. Code,  6600 et seq.) He argues that the judgment must be reversed because he was shackled before the jury even though there was no showing of a manifest need for such restraints. (People v. Combs (2004) 34 Cal.4th 821, 837.) The People respond that appellant has waived this issue by failing to object. They also contend appellant cannot establish prejudice where the record does not demonstrate that jurors actually saw the restraints or that appellant was hampered in presenting his defense. We affirm.

BACKGROUND

Appellant was convicted in 1983 of forcible rape against a 16-year-old girl and committing lewd acts with an 11-year-old girl. He had a history of committing other sexual offenses against young children and was violated on parole in 1996 after sneaking into a female dorm at 3:30 in the morning. Appellant was returned to state prison and was committed to the Department of Mental Health as an SVP following a jury trial in 1998.

The district attorney filed a petition to recommit appellant as an SVP in 1999. The court granted appellant's request to represent himself under Farretta v. California (1975) 422 U.S. 806 on June 7, 2000. On July 18, 2000, appellant filed a motion challenging the use of chained restraints during a pretrial proceeding, noting that he had no history of escape or violence. The court denied the motion for reasons of "public safety" and ordered that appellant remain in restraints throughout the pretrial proceedings. On October 19, 2001, appellant's advisory counsel asked the court whether handcuffs could be removed during a pretrial hearing because appellant was having difficulties handling his paperwork. The court stated that it would consider the request at a future hearing if advance notice were given and the Sheriff's Department had an opportunity to respond.

Subsequent petitions for recommitment were filed in 2001 and 2003, and these petitions were consolidated for trial with the 1999 petition. A trial on all three petitions was held in August 2004. The record shows that some form of physical restraints was still being used at the time of trial because the court asked appellant during voir dire, "Can you move around sufficiently with that?" Appellant replied, "Not really, but I will manage."

The prosecution called five experts who testified that appellant was an SVP because he suffered from qualifying mental disorders (pedophilia, antisocial personality disorder, and polysubstance abuse disorder) and was likely to commit predatory sexual offenses if released. The defense called two experts who testified that appellant did not suffer from a mental disorder. The jury determined that appellant was an SVP and he was committed to the Department of Mental Health for a two-year term on each petition, the final term to expire on July 31, 2005.

DISCUSSION

"'A criminal defendant cannot be physically restrained in the jury's presence unless there is a showing of manifest need for such restraints. [Citation.] Such a showing, which must appear as a matter of record [citation], may be satisfied by evidence, for example, that the defendant plans to engage in violent or disruptive behavior in court, or that he plans to escape from the courtroom [citation]. A shackling decision must be based on facts, not mere rumor or innuendo.'" (People v. Combs, supra, 34 Cal.4th at p. 837.)

The decision to allow shackling is reviewed for abuse of discretion. (People v. Mar (2002) 28 Cal.4th 1201, 1217.) Appellant contends, and the People concede, that the trial court abused its discretion because it made no determination of a manifest need before allowing restraints to be used at trial. (See ibid.)

Though recognizing the error, the People argue that appellant has forfeited his claim by failing to object. We disagree. It is settled that the use of physical restraints cannot be challenged for the first time on appeal. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.) Appellant did not specifically object at trial, but he brought a motion for removal of the restraints shortly after he began representing himself in 2000. Given the prejudice inherent in appearing before a jury in restraints, we have no reason to assume that appellant changed his mind and had acquiesced in the court's previous ruling authorizing those restraints

Appellant argues that his shackling deprived him of the right to represent himself under Faretta v. California, supra, 422 U.S. 806, a structural error which requires reversal per se. (See McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8; People v. Joseph (1983) 34 Cal.3d 936, 948.) In this case, however, there is no Faretta error. There is no basis for concluding that the restraints compromised appellants ability to voir dire prospective jurors, to make his opening and closing statements, to lodge objections, and to question witnesses. Although one or both of appellants hands were restrained during some of the pretrial proceedings, he has not established that this was true during the trial. When questioned about his ability to move around during voir dire, appellant indicated that he could manage. Appellant was assisted by advisory counsel and we assume that if the restraints had inhibited his self-representation, counsel would have raised that issue with the court.

Our supreme court has "'consistently held that courtroom shackling, even if error, was 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.' [Citations.]" (People v. Combs, supra, 34 Cal.4th at pp. 838-389.) Here, the record does not reveal the nature of the restraints used at trial and "'there was no evidence [the shackling] was seen by the jury.'" (People v. Fisher (2006) 136 Cal.App.4th 76, 80, citing People v. Tuilaepa, supra, 4 Cal.4th at pp. 583-584 and People v. Cox (1991), 53 Cal.3d 618, 652.) We conclude the use of restraints, even if erroneous, did not hinder appellant's ability to represent himself or deny him a fair trial. Thus, any error was harmless. (Combs, at pp. 838-839; Fisher, at p. 80.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Timothy J. Staffel, Judge

Superior Court County of Santa Barbara

______________________________

Mark Christopher Truax, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.

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