In re JAIME MEJIA JASSO,

Filed 9/12/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Story continue from Part I ………

Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the defendant bears a two-pronged burden. First, the defendant must establish that “ ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) Second, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.) A different--i.e., more favorable--result than a conviction includes not just an acquittal but also a deadlock or hung jury. (See People v. Brown (1988) 46 Cal.3d 432, 471, fn. 1 [conc. & diss. opn. of Broussard, J.].)

As noted, defense counsel saw no grounds for shackling defendant, but he had no tactical reason for failing to object. Although he alleged that the Monterey County Superior Court routinely shackles prison inmates for trial, he does not assert that policy as the reason he did not object. Concerning defendant’s prison jumpsuit, counsel did not request civilian clothing because he knew that the jury inevitably would learn that defendant was a prisoner. However, counsel’s decision was unreasonable. Prison garb is inherently prejudicial, and defendant had a constitutional right to wear civilian clothes. (Estelle v. Williams, supra, 425 U.S. at pp. 518-519; People v. Taylor, supra, 31 Cal.3d at pp. 494-496.) Thus, had counsel timely requested civilian clothing, the court, absent a compelling reason--and none appears in the record--would have granted the request. Counsel’s reasoning reflects a harmless-error analysis rather than a sound tactical decision in his client’s best interest. Moreover, counsel’s analysis ignores the potential impact on the jury of seeing a defendant in a prison jumpsuit and shackles and hearing him be identified during trial as the person “wearing a white jumpsuit.” (Cf. People v. Taylor, supra, 31 Cal.3d at p. 500 [witnesses identifying the defendant as the person “ ‘ “wearing blue county clothes” ‘ “ and the one dressed in a “ ‘ “blue jail suit” ‘ “].) As the court in People v. Garcia (1984) 160 Cal.App.3d 82, 91, observed, “regardless of the rules that may be laid down by the courts in this area, jurors will invariably study a nontestifying defendant’s appearance and demeanor in hopes of discovering clues as to his guilt or innocence.” Shackles and prison garb undoubtedly inform this inquiry.

Furthermore, because counsel failed to object to the shackles and the jumpsuit, he waived the issue and prevented defendant from raising it directly on appeal. Had counsel objected and the objection erroneously been denied, our review would have been governed by the stringent harmless-error standard for federal constitutional errors set forth in Chapman v. California (1967) 386 U.S. 18, 24, and the state would have had to prove beyond a reasonable doubt that the shackling and jumpsuit did not contribute to the verdict. (Deck, supra, 544 U.S. at p. 635.) However, because counsel waived the issue, defendant can only indirectly raise it with a claim of ineffective assistance. In that context, we apply a less stringent standard of review, under which defendant has the burden to prove a reasonable probability that he would have obtained a more favorable result had he not been shackled and required to wear a jumpsuit. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)

In short, the allegations in the petition unequivocally establish that counsel’s performance “ ‘fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.]” (People v. Ledesma, supra, 43 Cal.3d at p. 216.)[1]

We now address question of prejudice.

First, although the jury inevitably would learn that defendant was a prison inmate, that fact does not erase the visual, psychological, and emotional impact of seeing a defendant shackled, wearing a prison jumpsuit, day after day or negate the natural tendency to wonder and perhaps worry about why shackles are necessary and whether defendant is a violent and dangerous criminal.

Second, although defendant did not allege that the shackles and prison garb affected his decision not to testify, he did allege that the shackles were embarrassing and impaired his ability to participate in his defense, in that he was unable to take notes when the prosecution witnesses were testifying. He also alleged that his shackles hurt him and made him question whether jurors could view him fairly. In this respect, we may reasonably assume that the shackles affected the defense by distracting defendant and making it more difficult to think clearly. (Cf. People v. Mar, supra, 28 Cal.4th at p. 1224 [affect of stun belt on defendant].)

Third, we acknowledge that the court instructed the jury to disregard defendant’s shackles, and as a general rule, courts may presume that jury’s follow such instructional admonitions. (See People v. Davenport (1995) 11 Cal.4th 1171, 1210.) However, we point out that the court instructed the jury after all the witnesses had testified and counsel had given their closing arguments. Thus, the sight of defendant in shackles and a jumpsuit and the prejudicial associations from both tainted the jury’s perception and evaluation of the evidence and closing argument. In our view, it is far more reasonable to presume that jurors can disregard the impact of seeing a shackled defendant before they have heard the evidence and formed opinions about the defendant and witnesses, than it is to presume they can do so after they have heard and formed opinions about all of the evidence.

Furthermore, if the presumption cures not only an erroneous determination that shackles are necessary but also the failure to make a determination in the first place, then, as noted, trial courts would have no incentive to perform their sua sponte duty and could simply shackle criminal defendants as a matter of routine and later instruct the jury to disregard the restraints. However, routine shackling without an individualized justification is flagrantly contrary to the procedures outlined by United States and California Supreme Courts.

Last, we do not believe that the presumption is, or ought to be mandatory, in every case. On the contrary, as the evidence of guilt in a given case becomes less and less compelling, reliance on a general presumption to negate the inherent prejudice from shackles and prison garb becomes less and less reasonable and appropriate, especially when, as here, the instruction comes after the jury has heard the evidence and witnesses.

Turning to the evidence in this case, we note that although the evidence that Sara and Martha unlawfully transported drugs was overwhelming, the evidence connecting defendant to the two crimes was far less so. Indeed, there were substantial deficiencies in the prosecution’s case on that determinative issue.

Officer Doglietto had no independent knowledge that defendant made any of the calls he interpreted. He relied on Officer Garcia to identify defendant. However, Officer Garcia did not testify that he personally saw and identified defendant making each of the calls attributed to him. Nor did he testify that he had independent knowledge of defendant’s voice. He testified only that he had Officer Munoz personally identify the name of a caller on May 31, 2001, and later he started to recognize the voices on the various calls he monitored.

Officer Munoz confirmed that he visually identified defendant as the caller on only one call on May 31, 2001. Officer Doglietto agreed that of all the calls he listened to, there was positive visual identification for only that one call. Thus, although numerous calls were attributed to defendant, he was positively and visually identified as the caller on only one.

Even though there was some evidence that defendant made a call on May 31, 2001, the prosecution did not rely on it. Officer Doglietto did not testify about what was said or otherwise suggest that that during the call defendant used code words for drug-related activity. Rather, Officer Doglietto testified about the calls on and after June 5, 2001.[2]

We further note that there was only one call attributed to defendant in which the name of Theresa, a.k.a. Martha, was mentioned. That call took place on June 6, 2001. All of the other calls related to Theresa or Martha, which Officer Doglietto interpreted to be arrangements for Martha to import drugs, were attributed to Ramirez and Villa. Thus, the evidence linking defendant to the unlawful transportation alleged in count 4 was especially weak.

Next, Officer Garcia received no formal training concerning how to collect and pass on information about calls he considered to be suspicious. Nor were there formal procedures or forms for him to use. He simply wrote down notes on scraps of paper and sometime later passed the information, but not the scraps of paper, to Officer Doglietto. At some unspecified time later, he compiled the information into informal logs for his own personal records. Apparently, Officer Garcia did not keep his original notes because they were not introduced as evidence at trial.

We observe that in cases where telephone company PIN registers are used to identify time, number, and other factual details, prosecutors still face considerable proof burdens in proving up the identity of a caller. The proof here is questionable. Although computers apparently record the calls and information related to the calls (see ante, fn. 3), those computer records were not admitted or even used at trial, and Officer Garcia did not use those records in compiling his personal logs, which were introduced at trial. However, there was little or no evidence adduced to establish the reliability of those after-the-fact logs. Although Officer Garcia’s paper scrap notes would have been the basis for establishing admissibility of the logs as past recollection recorded (Evid. Code, § 1237), they were not available or introduced at trial. Thus, the reliability of the information on the logs was never tested or properly established.[3]

Under the circumstances, we do not find that counsel’s failure to object to defendant’s shackles and prison jumpsuit was harmless. Rather, counsel’s omission undermines our confidence in the verdict, and we find that but for that omission there is a reasonable probability defendant would have obtained a more favorable outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

Disposition

We issue an order to show cause returnable before the superior court directing the Attorney General to show cause why defendant’s remaining convictions for transporting

controlled substances should not be reversed due to ineffective assistance of counsel based on counsel’s failure to object to the shackles and prison garb. (See § 1508, subd. (b).)

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RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

Trial Court: Monterey County Superior Court

Court No.: SS021615

Trial Judge: The Honorable Robert F. Moody

Under appointment by the Court of

Appeal for Appellant

Attorneys for Petitioner Ruth McVeigh

Jamie Mejia Jasso:

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Defense counsel was not the only one in the courtroom whose performance was deficient. Trial courts not only have a general duty to control trial proceedings, maintain order and decorum, and safeguard the rights of the defendant and the interests of the state so that fairness and justice prevail (See People v. McKenzie (1983) 34 Cal.3d 616, 626-627, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 365; People v. Carlucci (1979) 23 Cal.3d 249, 255; People v. Mendez (1924) 193 Cal. 39, 46, overruled on other grounds in People v. McCaughan (1957) 49 Cal.2d 409,420; People v. Polite (1965) 236 Cal.App.2d 85, 91-92; Pedrow v. Federoff (1926) 77 Cal.App.164, 175) but also a specific duty to initiate a due process determination on the record establishing the necessity for shackles. (Duran, supra, 16 Cal.3d at p. 293, fn. 12.) We are disconcerted by the trial court’s failure to do so and alarmed by defense counsel’s suggestion that the omission may not have been inadvertent but consistent with a routine practice of shackling prison inmates during trial. The court’s failure to determine whether shackles were necessary and its instructional explanation that it is CDC policy to transport inmates in restraints support defense counsel’s assertion that shackling of inmates for trial is routine practice. Indeed, we see no reason for the court to mention CDC policy other than as a justification for the shackling as a reason for his failure to determine whether they were necessary. We emphasize, however, that Duran condemned routine shackling 30 years ago. (Duran, supra, 16 Cal.3d at p. 293.)

We are equally troubled that the court may have simply skipped a due process determination because it planned to instruct jurors to disregard defendant’s shackles. We consider it unwise and inappropriate, if not improper, for a court to rely on an instructional palliative to cure an erroneous failure to follow procedures mandated by the California and United States Supreme Courts and determine whether shackles are necessary.

We are also bothered by the prosecutor’s silence. A prosecutor is not simply an advocate, charged with the duty to convict regardless of the fairness of the proceedings. “Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal.” (In re Ferguson (1971) 5 Cal.3d 525, 531.) “[T]hough the attorney for the sovereign must prosecute the accused with earnestness and vigor, he must always be faithful to his client’s overriding interest that ‘justice shall be done.’ “ (United States v. Agurs (1976) 427 U.S. 97, 110-111.)

With this in mind, we note that when defendant “clanked” into the courtroom for the first time, the prosecutor apparently stood silent and remained silent throughout the trial concerning the use of shackles. Notwithstanding the trial court’s duty to make a due process determination, and defense counsel’s duty to object to shackles and prison garb, the prosecutor’s failure to ensure that the court made a proper record put any subsequent verdict for the prosecution at risk.

[2] Officer Garcia testified that he had Officer Munoz identify defendant on May 31 because he heard “something that was suspicious to [him].” However, he did not testify about what made him suspicious.

[3] Because Officer Garcia was not instructed to keep the logs, compiling them was not within the scope of his official duty. Indeed, he constructed them for his own personal records. Thus, the logs would not have been admissible as official records. (Evid. Code, § 1280.) Moreover, since Officer Garcia could not say when he constructed the logs and conceded that perhaps he did so months after the calls reflected in the logs, they would not have been admissible as business records. (Evid. Code, § 1271.)