Filed 4/5/18 P. v. Prince CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
IVIN CAPONE PRINCE,
Defendant and Appellant.

A147859

(Alameda County
Super. Ct. No. H58138A)


When the jury entered the courtroom on the last morning of defendant Ivin Capone Prince’s trial for first degree residential burglary, defendant was in waist chains. The sole issue on appeal is whether defendant’s trial counsel was ineffective for not objecting to the use of the chains. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged with one count of first degree residential burglary (Pen. Code, § 459). Jury selection was held on January 20 and 21, 2016, the taking of testimony started and finished on January 27, and the jury came back for closing arguments and instructions at 9:48 a.m. on the morning of January 28. The jury was excused to deliberate at about 11:35 a.m. There had been four witnesses: the victim whose home was burgled, two police officers, and defendant himself.
The only mention of waist chains in the record is in a brief colloquy on the morning of January 28 before the jury was in the courtroom, as the court and counsel were going over the admission of exhibits. Apparently addressing his comments to defense counsel and referring to defendant, the trial judge stated:
“THE COURT: Do you object to that or not? He’s got waist chains, or does he?
“MR. ALPERS [Defense counsel]: Well, he has chains. I don’t think they’ll be visible to the jury.
“THE COURT: Well, for the record, I’ve been told by the bailiff that there was a dust up of some kind, that he didn’t comply last night. So it’s necessary.”
That is the sum and substance of the discussion. After a very brief colloquy about verdict forms, the jury was brought in for closing arguments and jury instructions. The jury returned a guilty verdict on the one-count information for first degree residential burglary later in the afternoon on January 28.
DISCUSSION
Defendant argues that he was denied effective assistance of counsel because his trial attorney did not object to defendant wearing waist chains on the last morning of trial. To prevail on a claim of ineffective assistance of counsel in violation of the federal and state Constitutions, a criminal defendant “must demonstrate both deficient performance under an objective standard of professional reasonableness and prejudice under a similarly objective standard of reasonable probability of an adverse effect on the outcome.” (People v. Waidla (2000) 22 Cal.4th 690, 718.) “When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) In a claim of ineffective assistance of counsel on direct appeal, where “the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
Under California and federal constitutional principles, before a defendant may be subject to physical restraints in the presence of the jury there must be “ ‘ “a showing of a manifest need for such restraints” ’ ” specifically as to the defendant who is on trial. (People v. Bryant (2014) 60 Cal.4th 335, 389.) In making the decision to physically restrain a defendant, the trial court may consider “ ‘ “evidence establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in nonconforming behavior.” ’ ” (Ibid.) The court is not required to hold a formal hearing, but “ ‘ “the record must show the court based its determination on facts, not rumor and innuendo.” ’ ” (Ibid.) A court’s decision about using restraints “involves a prediction of the likelihood of violence, escape, or disruption weighed against the potential burden on the defendant’s right to a fair trial. Given the serious potential consequences on both sides of the scale, the range of factors the court may consider in assessing and weighing the risks should be broad.” (Id. at p. 390.) A decision to restrain a defendant will not be overturned unless the defendant demonstrates it was so erroneous that it “ ‘falls outside the bounds of reason,’ ” and a “merely debatable ruling cannot be deemed an abuse of discretion.” (Ibid.)
Our Supreme Court has “ ‘ “consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury. [Citations.]” [Citation.] Even a jury’s brief observations of physical restraints have generally been found nonprejudicial.’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 740.) If a defendant fails to object in the trial court to shackling, he forfeits the issue on appeal. (People v. Duran (1976) 16 Cal.3d. 282, 289.)
Here, trial counsel may have had a rational reason for not objecting to the waist chains on January 28. The bailiff told the trial court that the evening before defendant (who was in custody) had been disruptive; there was a “dust up.” The trial court concluded that defendant should have some restraint in the courtroom that morning. Defense counsel may have been aware of the disruptive behavior, or perhaps other behavior by defendant which, if disclosed and made the subject of further hearing, would have justified this security measure or perhaps even more restrictive courtroom restraints. On the record before us, we cannot say that the trial counsel’s decision was not an objectively reasonable tactical decision.
In any event, defendant has not shown that his counsel’s failure to object to the waist chains caused prejudice. A defendant alleging ineffective assistance of counsel must “affirmatively prove prejudice.” (Strickland v Washington (1984) 466 U.S. 668, 693.) Defendant has not done that here. First, the waist chains, per defense trial counsel’s observation in the courtroom, were not visible to the jury. Any suggestion to the contrary by appellate counsel is speculation lacking support in the record. Nor is there any evidence that the restraint affected defendant’s posture or demeanor in the courtroom, as appellate counsel speculated on appeal. Second, the waist chains had no effect on defendant’s decision to testify in his own behalf; he had testified the day before, and he was completely unrestrained. Third, nothing in the record suggested that the restraint impaired defendant’s ability to participate in his own defense during the closing arguments and reading of jury instructions on January 28. Finally, without analysis, counsel on appeal concedes that “the prosecution case was strong but not overwhelming,” but notably does not raise any other errors on appeal. On this record, we find no prejudice.
DISPOSITION
The judgment is affirmed.













_________________________
Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.










A147859, People v. Prince