In re Christian G.

Filed 5/4/07 In re Christian G. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Christian G. appeals following his adjudication as a ward of the court under Welfare and Institutions Code section 602. He contends that the juvenile court committed prejudicial error in permitting him to be unconstitutionally shackled during the dispositional hearing. We affirm.

Factual and Procedural Background

In March 2006, Christian G. was adjudged a ward of the court following his admission to two misdemeanor counts of taking or driving a vehicle without permission (Vehicle Code section 10851, subd. (a).)[1] The juvenile court placed him on probation and stayed a six-month commitment to a County institution.

The district attorney filed a supplemental petition, alleging another violation of section 10851, subdivision (a) and possession of brass knuckles in violation of Penal Code section 12020, subdivision (a). The juvenile court sustained the petition as to both counts and reduced the counts to misdemeanors.

In May 2006, the district attorney filed the present second supplemental petition alleging two more violations of section 10851, subdivision (a). At the jurisdictional hearing, the prosecution dismissed one of the charges due to unavailability of a witness. The juvenile court denied Christian G.s motion to remove shackles from his legs. A witness testified that his car had been stolen from a restaurant parking lot. A police officer testified that he stopped the vehicle later the same day, that Christian G. was the driver, and that, after being advised of his rights, Christian G. admitted that he used a shaved key to take the car from the parking lot. The juvenile court sustained the alleged violation of section 10851, subdivision (a).

At a June 2006 disposition hearing, the juvenile court lifted the stay and committed Christian G. to the Orin Allen Youth Rehabilitation Facility for a period of six months.

Discussion

Christian G. contends that he was shackled at the jurisdictional and dispositional hearings in violation of the due process and equal protection guarantees of the United States and California Constitutions.

This District recently held that physical restraints should not be used in juvenile proceedings absent a showing of necessity. (In re DeShaun M. (2007) 148 Cal.App.4th 1384, 1389.) A juvenile court may not have a general policy of shackling all defendants. (Ibid.) In the case before us, there are indications that the juvenile court did have a general policy of shacking all minors in custody at court appearances, and the juvenile court made no findings particular to Christian G. regarding the necessity of using physical restraints in the jurisdictional or dispositional hearings.[2] Nevertheless, Christian G.s appeal suffers from several infirmities.

First, Christian G. does not claim that he was prejudiced by the use of shackles at the jurisdictional hearing,[3] and he concedes that there is no direct evidence that he was shackled at the dispositional hearing. Absent such evidence, we cannot presume that he was shackled, despite the juvenile courts past practice of shackling defendants. Appellant bears the burden to provide a record on appeal which affirmatively shows that there was an error below and any uncertainty in the record must be resolved against appellant. (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084; see also People v. Garza (2005) 35 Cal.4th 866, 881.)

Second, although Christian G. objected to the use of shackles at the jurisdictional hearing, he did not object during the dispositional hearing. Because the dispositional hearing was before a different judge, we cannot presume that an objection would have been futile. Any error as to the shackling at the dispositional hearing has been forfeited. (People v. Ramirez (2006) 39 Cal.4th 398, 450.)

Finally, any error in the shackling at the dispositional hearing was harmless beyond a reasonable doubt. (See In re DeShaun M., supra, 148 Cal.App.4th at p. 1388 [declining to decide which standard of review is applicable to prejudice determination].) By the time of the hearing, the juvenile court had sustained four counts for violations of section 10851, subdivision (a). The current violation occurred while Christian G. was on probation. At the dispositional hearing, the juvenile court stated, Given that Christian has a pattern of stealing cars over and over, I am not going to reduce the offense, nor am I going to alter probations recommendation of a six-month regular, given that he committed this offense when he had the ranch commitment suspended. So he knew what he was looking at. I dont want to reward him for committing the new offense.[] As I said, Ive read and considered the report. Ive considered Christians age, the circumstances and gravity of the case, and his previous delinquent history. Christian G.s only argument as to why the disposition might have been different is his argument that in refusing to reduce the charges to misdemeanors and award custody credits the juvenile court may have been influenced by the fact that he was in shackles. However, appellate courts ordinarily presume that a judge is capable of weighing the appropriate factors without being prejudiced by extraneous matters, such as the presence of restraints. (Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 537.) No basis has been presented to deviate from that rule in this case. It is clear that any error in shackling Christian G. during the dispositional hearing was harmless under any standard.

Disposition

The juvenile court orders are affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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[1] All further statutory references are to the Vehicle Code unless otherwise indicated.

[2] During the jurisdictional hearing the juvenile court referred to the facts that the officers who transported Christian G. were unarmed and that the shackles would slow any escape attempt~(RT 10)~, but those are not the types of defendant-specific circumstances described in In re DeShaun M., supra, 148 Cal.App.4th 1384. (But see U.S. v. Howard (9th Cir. 2007) 480 F.3d 1005 [upholding general requirement that pretrial detainees making their first appearance before a magistrate judge wear leg shackles].)

[3] Despite a statement to the contrary in his opening brief, Christian G. asserts in his reply brief that he also experienced prejudice at the jurisdictional hearing.~(ARB 1)~ The argument has been forfeited, both because it is raised for the first time in the reply brief (People v. Thomas (1995) 38 Cal.App.4th 1331, 1334, fn. 1) and because it is inadequately developed (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785).