Supreme Court of California Justia
Citation 47 Cal. 4th 625, 218 P.3d 272, 101 Cal. Rptr. 3d 14

People v. Stevens

Filed 11/5/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S158852
v.
Ct.App. 1/4 A112197
LORENZO STEVENS,
Alameda County
Defendant and Appellant.
Super. Ct. No. C148565

We hold here that the stationing of a courtroom deputy next to a testifying
defendant is not an inherently prejudicial practice that must be justified by a
showing of manifest need. Defendant Lorenzo Stevens attempts to bring his case
under the exacting manifest need standard by asserting that the deputy‟s presence
is akin to a “human shackle.” A divided Court of Appeal rejected this argument,
and we do so as well. This conclusion is consistent with our explicit and
unanimous holding in People v. Marks (2003) 31 Cal.4th 197, 222-224 (Marks).
Because defendant has not shown actual prejudice, and the record supports the
trial court‟s exercise of discretion, we affirm the judgment of the Court of Appeal.
BACKGROUND
On July 13, 2004, 14-year-old R.D. was riding the bus home when
defendant, her father, called her cellular phone. R.D. lived with her grandmother
and had not seen her father in a month or two. At defendant‟s request, R.D. met
him at a nearby Taco Bell. From there, they walked about 30 minutes to an alley.
Defendant said he was living in a truck, which appeared to have been parked in the
1


alley for a long time. The windshield was covered with dirt, and the windows
were obscured with hanging pieces of cloth. They talked about why defendant
was living in a truck, and defendant asked R.D. if she would help him make
money. He said he wanted to take her to a hotel, and R.D. believed he was
suggesting prostitution. Defendant told R.D. she should use a more exotic, grown-
up name at the hotel. He told her to say her name was “Joy.” Defendant asked
R.D. if she was sexually active with her boyfriend, and he looked through her
purse for condoms.
While they sat inside the truck, defendant smoked something he called
“crystal” from a glass pipe. He then lay back and told R.D. to take off her pants.
When she refused, defendant placed a small rock of the “crystal” in her mouth,
telling her to suck on it and relax. The rock made R.D.‟s tongue numb. While
defendant‟s eyes were closed, she took the rock out of her mouth and placed it in
her bra. Defendant later asked for the rock back, but R.D., to his substantial
annoyance, claimed she had swallowed it. Defendant pulled his daughter onto his
lap and told her to dance. As she sat there, she felt his pelvis moving against her
bottom. She told him she wanted to leave, but defendant would not release her.
She began to cry and scream. Defendant continued to hold her down and then
sucked the side of her neck. He threatened to hit her if she did not quiet down.
Then he pulled his pants down, pulled R.D.‟s head toward his penis, and told her
to orally copulate him.
R.D. managed to escape and took the bus to her grandmother‟s house.
While on the bus, she took the rock out of her bra and put it in her purse. Once
home, R.D. called her mother, then told her grandmother what had happened. The
grandmother, Alice Beal, noticed a red mark on R.D.‟s neck that she had not seen
earlier that morning. R.D. gave the rock to Beal, who placed it in a plastic bag and
called the police.
Officer Valerga of the Oakland Police Department responded and took
possession of the bag containing the “crystal” rock, which was later determined to
2
be cocaine base. The officer asked to see where the incident occurred and then
drove R.D. and her grandmother to the Taco Bell. While she was in the squad car,
Beal received a call from R.D.‟s mother, who reported that she had seen defendant
and that her brother (R.D.‟s uncle) was chasing him. Officer Valerga went to the
mother‟s location and called for backup.
Several officers chased defendant through backyards. Eventually, he
jumped onto the roof of a house. As approximately 10 to 15 officers surrounded
the house and began to establish a perimeter, defendant took a running leap onto
another rooftop. He paced continually, looking over the edges of the roof. During
an hour-long standoff with the officers, defendant was agitated and threatened
suicide. He said he was upset about the sexual way his friends had been looking at
his daughter. He said that, although nobody would believe him, he did not touch
her. When one officer urged defendant to come down, he refused, saying,
“They‟re going to look at me differently.” At one point, defendant sat and smoked
what appeared to be crack cocaine from a glass pipe. While on the roof, he began
interacting with the crowd of spectators that had gathered.
Officers found a ladder in the yard and leaned it against the house.
However, to the great amusement of the crowd, defendant pulled the ladder onto
the roof, leaving the officers on the ground. Eventually, Oakland Fire Department
personnel arrived with a ladder. When officers began climbing to the roof,
defendant jumped off the opposite side. He was taken into custody on the ground
and later transported to a hospital for a sexual assault exam. He was combative
and uncooperative at the hospital and had to be placed in restraints.
Defendant was charged with assault with intent to commit rape, sodomy, or
oral copulation; furnishing a controlled substance to a minor; and administering a
drug to aid in the commission of a felony. The information also alleged defendant
had a prior serious felony conviction. Early in the trial, the court was informed
that defendant was trying to convince R.D. and her mother to drop the charges.
While in custody, he had arranged for a woman to call on his behalf and convey
3
this request. The court said for the record that it considered this conduct to be an
implied threat.
Defendant testified that he called R.D. on July 13, 2004, because he was
concerned about rumors he had heard about her grades and bad behavior and
because he was considering moving away. As they walked to the truck where he
was living, defendant said he noticed a “hickey” on R.D.‟s neck. When they were
sitting in the truck, he confronted her about the hickey and asked if she was
sexually active or using drugs. Defendant claimed R.D. began crying during this
conversation and told him she had been raped. After she stopped crying,
defendant walked her to the bus stop. Defendant saw her off, then retrieved some
supplies and began washing someone‟s car. As he did so, a friend approached and
warned him that R.D. had reported a sexual assault. Distressed, defendant called
his sister, asking her to come and talk to him. When she arrived, R.D.‟s mother
and a man jumped out of the car and began an attack that included beating him
with a stick. Defendant ran. He continued running even after he saw the police
because he was afraid. Defendant admitted that he smoked crack cocaine while he
was on the roof.
Defendant attended his trial unshackled and wearing civilian clothing.
During R.D.‟s testimony, a support person sat next to her and, without defense
objection, was introduced as a “victim witness advocate.” (See Pen. Code,
§ 868.5.) A sheriff‟s deputy sat directly behind defendant throughout the trial, and
a uniformed deputy1 was stationed at the witness stand while defendant testified.
Before defendant took the stand, his attorney stated that he had been
informed by the court and by courtroom deputies that if his client testified, “it is

1
Despite the Court of Appeal‟s description of the deputy as an “armed
guard,” the record includes no evidence about whether the deputy was armed.
Thus, although we granted the Attorney General‟s request for judicial notice of
sheriff‟s department regulations forbidding deputies to wear firearms “in close
proximity to inmates” (see Evid. Code, § 452, subd. (b)), we draw no conclusion
about whether a firearm was worn in this particular case.
4


policy—I‟m not sure whose policy, but it is policy to have a deputy sit with him at
the witness stand while my client testifies.” Counsel objected to this procedure,
arguing the placement of a deputy at the witness stand “is, basically, a human
shackle” that must be justified by good cause. In response, the court observed that
a deputy had been “sitting right behind” defendant “throughout the entire trial,”
and the court reasoned, “Having a deputy in, basically, the same proximity . . . will
be no more prejudicial.” The court remarked that “the Alameda County Sheriff‟s
Department policy of having a deputy at the stand with an in-custody [defendant]
for safety purposes, or even to prevent escape, is certainly reasonable,” and stated
it did not want jurors to be distracted by safety concerns. The prosecutor added
that defendant had become outwardly agitated in the presence of other deputies.
One of the jurors had submitted a note that remarked on defendant‟s agitated
behavior and apparent irritability. After defendant testified, his attorney stated for
the record that a uniformed deputy sheriff was “up on the stand next to him”
during both days of his testimony. Counsel also observed that the juror‟s note
stated only that he found defendant‟s behavior “distracting.” In a second note, the
juror said he did not feel afraid of defendant.2
Defendant was convicted as charged and sentenced to prison. A divided
panel of the Court of Appeal affirmed his conviction. We granted review to
determine whether the placing of a deputy sheriff at the witness stand while
defendant testified was an abuse of discretion or required a specific showing of
need. Defendant claims this procedure violated his right to due process under the
Fifth and Fourteenth Amendments of the United States Constitution. He also
argues the trial court abused its discretion by deferring to a sheriff‟s department
policy instead of reaching its own determination about security needs.

2
Neither note appears in the appellate record.
5


DISCUSSION
We begin with the familiar principle that a “trial court has broad power to
maintain courtroom security and orderly proceedings. [Citations.]” (People v.
Hayes (1999) 21 Cal.4th 1211, 1269.) For this reason, decisions regarding
security measures in the courtroom are generally reviewed for abuse of discretion.
(Ibid.; People v. Ayala (2000) 23 Cal.4th 225, 253; People v. Duran (1976) 16
Cal.3d 282, 293, fn. 12 (Duran).)
However, despite our traditional deference to the trial court in this area,
some extraordinary security practices carry an inordinate risk of infringing upon a
criminal defendant‟s right to a fair trial. These exceptional practices must be
justified by a particularized showing of manifest need sufficient to overcome the
substantial risk of prejudice they pose. For example, visible physical restraints
like handcuffs or leg irons may erode the presumption of innocence because they
suggest to the jury that the defendant is a dangerous person who must be separated
from the rest of the community. (Deck v. Missouri (2005) 544 U.S. 622, 630; see
Duran, supra, 16 Cal.3d at p. 290.) The same problem arises if the defendant is
required to appear before the jury dressed in prison clothing. (People v. Taylor
(1982) 31 Cal.3d 488, 494-495; Estelle v. Williams (1976) 425 U.S. 501, 504-
505.) In addition to their prejudicial effect on the jury, shackles may distract or
embarrass a defendant, potentially impairing his ability to participate in his
defense or serve as a competent witness on his own behalf. (Deck v. Missouri, at
p. 630; Duran, at pp. 288-290; People v. Harrington (1871) 42 Cal. 165, 168.)
Similar concerns have been raised about the use of physical restraints not visible
to the jury, like stun belts. (People v. Mar (2002) 28 Cal.4th 1201, 1218-1220.)
Because physical restraints carry such risks, the United States Supreme
Court has long considered their use inherently prejudicial. (Deck v. Missouri,
supra, 544 U.S. at pp. 626-629; Illinois v. Allen (1970) 397 U.S. 337, 343-344; see
Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 (Holbrook).) Thus, a criminal
defendant may not appear before the jury in shackles unless the trial court has
6
found that the restraints are justified by a state interest specific to the particular
trial. (Deck v. Missouri, at pp. 629, 632.) The court‟s determination may “take
into account the factors that courts have traditionally relied on in gauging potential
security problems and the risk of escape at trial.” (Id. at p. 629.)
For similar reasons, we too have concluded that visible physical restraints
must survive heightened scrutiny and be justified by a particular need. In Duran,
supra, 16 Cal.3d at pages 290-291, we held 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.” While the court
retains discretion to order restraints when they are needed to protect against
courtroom violence or other disruptions, we cautioned that imposing visible
physical restraints without a record showing violence, a threat of violence, or other
nonconforming conduct, “will be deemed to constitute an abuse of discretion.”
(Id. at p. 291.) No formal hearing is necessary to fulfill the mandate of Duran;
however, the record must show the court based its determination on facts, not
rumor and innuendo. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032;
People v. Cox (1991) 53 Cal.3d 618, 651-652; see also People v. Hayes, supra, 21
Cal.4th at p. 1268.)
But the stringent showing required for physical restraints like shackles is
the exception, not the rule. Security measures that are not inherently prejudicial
need not be justified by a demonstration of extraordinary need. (People v. Jenkins
(2000) 22 Cal.4th 900, 995, 997; Duran, supra, 16 Cal.3d at p. 291, fn. 8.) In
contrast to physical restraints placed on the defendant‟s person, we have upheld
most other security practices when based on proper exercises of discretion. Thus,
we concluded the use of a metal detector or magnetometer at the entrance of the
courtroom is not inherently prejudicial. (People v. Jenkins, at p. 996; People v.
Ayala, supra, 23 Cal.4th at pp. 252-253; see also Morgan v. Aispuro (9th Cir.
1991) 946 F.2d 1462, 1465 [use of a “security courtroom,” with a partition and
bars separating spectator section from court area, is not inherently prejudicial].)
7
And we have consistently upheld the stationing of security or law enforcement
officers in the courtroom. (E.g., People v. Jenkins, at pp. 998-999; People v.
Ainsworth (1988) 45 Cal.3d 984, 1003-1004; see People v. Miranda (1987) 44
Cal.3d 57, 114-115 [three officers accompanied a prosecution witness who was in
custody].)
In Duran, we specifically distinguished shackling from the use of armed
guards in the courtroom. (Duran, supra, 16 Cal.3d at p. 291, fn. 8.) We explained
that unless the guards “are present in unreasonable numbers, such presence need
not be justified by the court or the prosecutor. [Citations.]” (Ibid.) California
courts have long maintained this distinction between the presence of security
officers and the imposition of physical restraints. In People v. David (1939) 12
Cal.2d 639, 644, after a sheriff and his deputies accompanied the defendant into
the courtroom, one deputy followed the defendant inside the rail and took a seat
immediately behind him. The defendant claimed this action biased the jury in the
same manner as shackling, but we disagreed, finding “nothing to show that [the
deputy‟s] conduct prejudiced the defendant in any way.” (Ibid.) In People v.
Stabler (1962) 202 Cal.App.2d 862, 863, a defendant with a history of escaping
from prison relied on shackling authorities in objecting to the presence of eight
armed law enforcement officers in the courtroom. The Court of Appeal rejected
his claim, noting the defendant “was under no close or obvious personal restraint
in the presence of the jury.” (Id. at p. 864.) The court observed, “Mere increase in
the number of guards was by no means unreasonable in view of the indications
that defendant sought to become the Houdini of Humboldt.” (Ibid.) In People v.
Ainsworth, supra, 45 Cal.3d at page 1003, the defendant objected to the presence
of four to six uniformed, armed sheriff‟s deputies, including two posted behind
him. He claimed their number and placement were unconstitutional without a
particularized showing of manifest need. We upheld the stationing of these
deputies as a reasonable exercise of the trial court‟s discretion. (Id. at pp. 1003-
1004.)
8

When the United States Supreme Court addressed a claim challenging the
presence of armed guards in the courtroom, it explained in detail why the
deployment of security personnel is different from shackling and usually does not
constitute an inherently prejudicial practice that must be justified under a higher
standard of scrutiny. Writing for a unanimous court, Justice Marshall stated:
“The chief feature that distinguishes the use of identifiable security officers from
courtroom practices we might find inherently prejudicial is the wider range of
inferences that a juror might reasonably draw from the officers‟ presence. While
shackling and prison clothes are unmistakable indications of the need to separate a
defendant from the community at large, the presence of guards at a defendant‟s
trial need not be interpreted as a sign that he is particularly dangerous or culpable.
Jurors may just as easily believe that the officers are there to guard against
disruptions emanating from outside the courtroom or to ensure that tense
courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that
jurors will not infer anything at all from the presence of the guards. If they are
placed at some distance from the accused, security officers may well be perceived
more as elements of an impressive drama than as reminders of the defendant‟s
special status. Our society has become inured to the presence of armed guards in
most public places; they are doubtless taken for granted so long as their numbers
or weaponry do not suggest particular official concern or alarm. [Citation.]”
(Holbrook, supra, 475 U.S. at p. 569.) The court cautioned that the sight of a
security force might, under some conditions, create an impression in jurors‟ minds
that the defendant is dangerous or untrustworthy; “[h]owever, „reason, principle,
and common human experience,‟ [citation] counsel against a presumption that any
use of identifiable security guards in the courtroom is inherently prejudicial.”
(Ibid.)
Indisputably, events in recent years have resulted in security guards
becoming even more ubiquitous than when Justice Marshall made his observations
in 1986. As the Chief Justice of this court pointed out in People v. Jenkins, supra,
9
22 Cal.4th at page 998, the presence of security guards in the courtroom “is seen
by jurors as ordinary and expected.” Following the high court‟s holding that the
stationing of identifiable security officers in the courtroom is not inherently
prejudicial, we have examined claims of excessive security to determine whether
the defendant was actually prejudiced by the officers‟ presence. (Ibid.; People v.
Miranda, supra, 44 Cal.3d at p. 115.) Defendant has not cited, nor, after a
nationwide search, have we found, a single conviction that has been reversed
under Holbrook based on the presence of excessive security in the courtroom.3
The issue presented here is only slightly different. Defendant‟s objection
rests not on numbers but on propinquity. He asserts he was deprived of a fair trial
because one deputy sat or stood next to him at the witness stand while he
testified.4 Analogizing to the physical restraint cases, he characterizes the deputy

3
The only case that comes close is Woods v. Dugger (11th Cir. 1991) 923
F.2d 1454, but it is readily distinguishable. In Woods, the defendant was tried for
killing a corrections officer in a small Florida community with close ties to the
prison. (Id. at pp. 1457-1458.) A large number of corrections officers, filling as
much as half the courtroom, attended the trial in uniform. (Id. at p. 1458.) The
Eleventh Circuit Court of Appeals reversed the defendant‟s conviction due to the
prejudice that may have resulted from the combination of extensive pretrial
publicity and the imposing presence at trial of so many uniformed guards. (Id. at
pp. 1459-1460; but see Bell v. True (W.D.Va. 2006) 413 F.Supp.2d 657, 721
[pretrial publicity combined with the presence of uniformed officers in the
courtroom did not pose unacceptable threat to defendant‟s right to a fair trial].) In
Woods, unlike here, the officers were present only as spectators “and were not a
part of courtroom security.” (Woods v. Dugger, at p. 1460.)
4
Although it is not clear from the record, the deputy also presumably walked
to the witness stand with defendant, because defendant was called to testify
immediately after another witness stepped down. However, as the Attorney
General pointed out at oral argument, it is possible that a deputy deployed
elsewhere in the courtroom simply moved to the vicinity of the witness box. The
record does not say. Nor does anything in the record establish whether the deputy
sat or stood, or precisely where he was in relation to defendant. All we have is
defense counsel‟s statement that the deputy was “up on the stand next to”
defendant. Neither this statement nor anything else in the record supports the
dissent‟s assertion that the deputy sat “in the jury‟s view” and “right next to”
10


as a “human shackle,” whose presence nearby focused attention on his custodial
status as do physical restraints or jailhouse clothing. Thus, he contends the
deputy‟s presence should be considered inherently prejudicial. We disagree.
We considered a very similar claim in Marks, supra, 31 Cal.4th at
pages 222-224. The trial court in Marks initially declined to impose physical
restraints requested by the defendant‟s own attorneys due to his violent outbursts.
It revisited the issue upon learning that the defendant intended to testify. The
witness stand was located only four feet from the jury box. (Id. at pp. 222-223.)
As an alternative to having the defendant testify from his position at counsel‟s
table, the trial court allowed the defendant to take the witness stand but
“position[ed] a marshal in a chair next to defendant on the raised platform that was
parallel to Juror No. 7.” (Id. at p. 223.) It appeared from the record that “the
marshal sat four or five feet from defendant‟s side (facing his ear) next to and
slightly behind Juror No. 7.” (Id. at p. 223, fn. 5.)5 At the defendant‟s request, the
court admonished the jury not to speculate about the reasons for the deputy‟s
position. (Id. at p. 223.) On appeal, this court unanimously rejected the
defendant‟s claim that a showing of manifest need was required to justify the

defendant (dis. opn., post, at p. 8), such that “the jury . . . could not help but see
the deputy sheriff while watching defendant testify.” (Id. at p. 10, fn. 9.)
5
The dissent makes an unfounded, and erroneous, assumption when it tries
to distinguish Marks based on where the marshal was seated. (Dis. opn., post, at
pp. 9-10.) There is no basis in Marks from which to assert that the marshal there
was any more removed from the jury‟s sightline than the marshal here. These
cases were tried in the same Alameda County courthouse. In Marks, the court said
it would have a marshal seated “in a chair next to defendant on the raised
platform” adjacent to the jury box. (Marks, supra, 31 Cal.4th at p. 223.) The jury
box was four feet away from the witness stand and on the same level with it.
(Ibid.) In Marks, as here, the deputy was “up on the stand next to” the defendant.
Marks cannot legitimately be distinguished on the basis urged. Thus, unlike the
apparent confusion of the dissent, we understand the description by the trial court
in Marks of a marshal sitting “next to defendant” to mean that there the marshal
was sitting next to the defendant. The marshal would have been between the
defendant and the jurors and, therefore, in their line of sight.
11


deputy‟s presence “so close to him as he testified.” (Ibid.) We found the
defendant‟s reliance on Duran unavailing because Duran required a manifest need
showing only for the use of physical restraints, and it “expressly distinguished
such shackling from monitoring by security personnel.” (Marks, at p. 223.) We
observed that the distinction between shackling and the stationing of security
officers has long been recognized in California law, and we found support for this
view in the Supreme Court‟s Holbrook decision. We expressly adhered to the
distinction and declined to require a showing of manifest need for the deployment
of marshals inside the courtroom. (Marks, at p. 224.) In light of Mr. Marks‟s
history of violence and disruptive behavior during the proceedings, we concluded
the trial court had properly exercised its discretion in stationing a deputy near the
witness stand. (Ibid.)
Defendant‟s attempt to distinguish Marks is unpersuasive. Defendant
argues our rejection of the manifest need requirement should be disregarded as
dicta because the record of Mr. Marks‟s violent behavior was sufficient to meet
the heightened standard. However, Marks did not rely on the defendant‟s conduct
or the courtroom‟s configuration to conclude that the manifest need standard was
satisfied in that particular case. Marks held that the higher showing of manifest
need was not required. (Marks, supra, 31 Cal.4th at p. 224.) Of course, even
where a showing of manifest need is not required to justify a security practice, the
practice remains subject to review for abuse of discretion. (See, e.g., People v.
Jenkins, supra, 22 Cal.4th at pp. 998-999; People v. Miranda, supra, 44 Cal.3d at
p. 115.) Although we suggested the result would be the same in Marks “[u]nder
any standard of review,” our discussion of facts supporting the trial court‟s
decision was merely an application of this deferential review. (Marks, at p. 224.)
The dissent below cited the factual discussion in Marks as “just the type of
case-by-case approach deemed „appropriate‟ by the United States Supreme Court
in Holbrook, supra, 475 U.S. at page 569.” The dissent misreads Holbrook and
ignores the express holding of Marks. These cases do not turn on individualized
12
trial court determinations, but on whether the security practice is so inherently
prejudicial that it must be subject to stricter scrutiny. Any discretionary ruling
must take into account the particular circumstances of the individual case and will
be reviewed in that context. However, if a practice is not inherently prejudicial, it
need not be justified by a compelling case-specific showing of need. (Holbrook,
at pp. 568-569; People v. Jenkins, supra, 22 Cal.4th at p. 997.) As the high court
explained in the context of habeas corpus review, “All a federal [or a reviewing]
court may do in such a situation is look at the scene presented to jurors and
determine whether what they saw was so inherently prejudicial as to pose an
unacceptable threat to defendant‟s right to a fair trial; if the challenged practice is
not found inherently prejudicial and if the defendant fails to show actual prejudice,
the inquiry is over.” (Holbrook, at p. 572.)
The practice at issue here was very similar to that in Marks. A deputy
sheriff was stationed at the witness stand near defendant throughout his testimony.
In deciding whether this arrangement was inherently prejudicial, we must evaluate
the likely effects of the procedure “based on reason, principle, and common
human experience” (Estelle v. Williams, supra, 425 U.S. at p. 504) to determine
“whether „an unacceptable risk is presented of impermissible factors coming into
play.‟ ” (Holbrook, supra, 475 U.S. at p. 570.)
Defendant argues a uniformed deputy‟s presence at the witness stand
converts a neutral security measure into one that is impermissibly defendant
focused. He contends the deputy serves as a constant reminder of the defendant‟s
custodial status, like prison clothing or visible physical restraints, thus implying
that the defendant is dangerous or untrustworthy. (See Holbrook, supra, 475 U.S.
at p. 569.)
We conclude a deputy‟s presence at the witness stand during a defendant‟s
testimony is not inherently prejudicial. As the United States Supreme Court
observed over 20 years ago, jurors have become accustomed to seeing security
officers in public places such as the courtroom (Holbrook, supra, 475 U.S. at
13
p. 569), and there is a wide range of inferences they may draw from an officer‟s
presence near a testifying defendant. Because security officers are now “ordinary
and expected” in the courtroom (People v. Jenkins, supra, 22 Cal.4th at p. 998),
jurors may view the sight of an officer accompanying the defendant to the witness
stand as nothing more than a routine measure. (Holbrook, at p. 569; see People v.
Miranda, supra, 44 Cal.3d at p. 115.) Although a deputy‟s presence next to a
testifying defendant may be viewed as a defendant-focused practice when officers
do not accompany other witnesses to the stand, the Supreme Court has made it
clear that not “every practice tending to single out the accused from everyone else
in the courtroom must be struck down.” (Holbrook, supra, 475 U.S. at p. 567.)
“Recognizing that jurors are quite aware that the defendant appearing before them
did not arrive there by choice or happenstance,” the high court stressed that it has
“never tried, and could never hope, to eliminate from trial procedures every
reminder that the State has chosen to marshal its resources against a defendant to
punish him for allegedly criminal conduct.” (Ibid.) That a security practice seems
to focus attention on the defendant is not enough, without more, to render the
practice inherently prejudicial.
Defendant‟s attempt to characterize the deputy‟s presence at the witness
stand as a “constant reminder” of his custodial status also fails to withstand
scrutiny. The United States Supreme Court has previously approved the posting
of uniformed, armed troopers immediately behind defendants sitting at counsel
table. (Holbrook, supra, 475 U.S. at pp. 562-563 & fn. 2.) This accepted practice
is not transformed into an inherently prejudicial measure simply because an officer
rises with the defendant and maintains the same proximity to him while he
testifies. The jury will see the security officer at the stand for a limited period of
time. Thus, the officer‟s presence at the stand is not “a continuing influence
throughout the trial” (Estelle v. Williams, supra, 425 U.S. at p. 505) in the same
way as the constant sight of prison clothes or shackles. Defendant also asserts that
a deputy‟s presence near the accused will “inevitably tend[] to confuse and
14
embarrass his mental faculties.” (People v. Harrington, supra, 42 Cal. at p. 168.)
He does not explain why the mere proximity of a law enforcement officer will
“inevitably” produce such a crippling mental state. In the shackling context, we
have recognized the potential for distraction and embarrassment that might flow
from the pain or restriction imposed by physical bonds. (Ibid.; Duran, supra, 16
Cal.3d at p. 288.) Similarly, in People v. Mar, supra, 28 Cal.4th at pages 1226-
1227, we noted the psychological effects of wearing a device that can deliver a
severe electrical shock without warning, and even through inadvertence. There is
simply no equivalent here to the extreme and sometimes painful physical
limitations imposed by manacles or other physical restraining devices. The
presence of a deputy does not directly impair the accused‟s mobility, nor does it
create the affront to human dignity that we have lamented in the context of visible
shackles. (Duran, at p. 290; see also Deck v. Missouri, supra, 544 U.S. at pp. 631-
632.) On the contrary, so long as the deputy maintains a respectful distance from
the defendant and does not behave in a manner that distracts from, or appears to
comment on, the defendant‟s testimony,6 a court‟s decision to permit a deputy‟s
presence near the defendant at the witness stand is consistent with the decorum of
courtroom proceedings.
The Supreme Court of Illinois previously announced the same conclusion
we reach here. In People v. Peeples (2002) 205 Ill.2d 480, 526 [793 N.E.2d 641,
669], two uniformed deputy sheriffs sat within arm‟s reach behind the defendant
while he was seated at the defense table. When, in the presence of the jury, the
defendant was called to testify, one of the deputies “ „escorted him to the witness
stand, stood behind him while he testified, and then escorted him back to the
defense table.‟ ” (Ibid.) On appeal, the defendant claimed this practice was
inherently prejudicial because it could raise no inference other than that he was a

6
Defendant does not claim the deputy‟s demeanor here was in any way
inappropriate.
15


dangerous person who was likely guilty of the crime charged. (Id., 793 N.E.2d at
p. 671.) Illinois‟s high court disagreed, citing the prior approval of a variety of
courtroom security configurations. (Id. at pp. 671-672.) Noting that the presence
of uniformed guards during courtroom proceedings is a common practice, the
court found nothing extraordinary about the posting of a single guard behind the
defendant at the witness stand. (Id. at p. 672.) Because “there [wa]s no evidence
of record that the number of guards or their weaponry „suggest[ed] particular
official concern or alarm‟ (Holbrook, [supra,] 475 U.S. at 569),” the court
concluded, “any inferences unfavorable to defendant under the circumstances at
bar would be highly speculative.” (People v. Peeples, at p. 672; see also United
States v. Williams (8th Cir. 1990) 897 F.2d 1430, 1434 [defendant was not
prejudiced by presence of uniformed United States Marshal standing next to him
at the witness stand]; People v. Hughes (1990) 205 Ill.App.3d 79, 83-84 [562
N.E.2d 1266, 1269] [no error resulted when uniformed sheriff escorted defendant
to witness stand, stood behind him as he testified, and escorted him back to the
defense table afterward]; Wainwright v. Lockhart (8th Cir. 1996) 80 F.3d 1226,
1232 [it was not inherently or actually prejudicial for capital defendant to be
escorted and guarded by two officers at the witness stand during the penalty phase
of trial]; cf. Hunt v. State (1988) 312 Md. 494, 506-508 [540 A.2d 1125, 1130-
1132] [no prejudice shown from correctional officers accompanying defendant to
bench conferences during pretrial voir dire proceedings].)7

7
As noted, we have not found a decision from anywhere in the country
reaching the opposite conclusion. Defendant has directed us to two out-of-state
cases, but neither involves a claim of prejudicial security measures or the
stationing of a security officer at the witness stand. In the pre-Holbrook case
Anthony v. State (Alaska 1974) 521 P.2d 486, the Alaska Supreme Court reversed
a murder conviction due to instructional error. Near the end of its opinion, the
court related an incident in which the defendant had been brought into court
unshaven, under guard, and possibly wearing jail clothing. (Id. at p. 495.)
Without deciding whether this was prejudicial error, the court cautioned that on
remand the defendant should be permitted to appear in court shaved and showered,
16



The circumstances of this case do not support defendant‟s claims of
prejudice, inherent or otherwise. Although defendant argues the jury may have
viewed him as dangerous, this possibility is undercut by the fact that he was
monitored by a single deputy. Indeed, given the undisputed evidence that
defendant was physically attacked by members of the victim‟s family when they
learned of the alleged assault, jurors might reasonably have concluded that the
deputy was present to protect defendant‟s own safety. Or, if they thought anything
of the deputy‟s presence at all, jurors may have believed it to be a routine
precaution. Further, the jury was properly instructed to disregard the fact that
defendant was in custody.8 We presume the jury followed this instruction.
(People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Defendant also claims he was prejudiced by the contrast between his law
enforcement escort and his accuser‟s accompaniment by a person the prosecutor
described as a “victim witness advocate.” Penal Code section 868.5,
subdivision (a) entitles the prosecuting witness in a sex abuse case to have a
support person present at the stand during the witness‟s testimony. Defendant did

and in his own attire, and “guards should remain outside the observation of the
jury.” (Id. at p. 496.) In State v. Gonzalez (2005) 129 Wn.App. 895 [120 P.3d
645], a divided appellate panel reversed a criminal conviction because comments
from the trial court inappropriately highlighted the defendant‟s custodial status.
The court had announced at the outset of trial that the defendant “could not post
bail, was therefore being held in jail, was being transported to and from court in
handcuffs, and that uniformed officers were guarding him in the courtroom.” (Id.,
120 P.3d at p. 647.) Although the jury was told to draw no adverse inferences
from these facts, the majority believed a preemptive instruction that draws
attention to a defendant‟s custodial status “creates the problem it purports to
solve.” (Id. at p. 649.)
8
The jury was instructed with a variation of CALJIC No. 1.04, as follows:
“The fact that the Defendant is in custody must not be considered by you for any
purpose. That is not evidence of guilt and must not be considered by you as any
evidence that he is more likely to be guilty than not guilty. You must not
speculate as to why he is in custody. In determining the issues in this case,
disregard this matter entirely.” (See also CALCRIM No. 204.)
17


not object to the support person‟s presence at trial, and he therefore waived any
claim of error from this procedure. (People v. Lord (1994) 30 Cal.App.4th 1718,
1722.) Moreover, defendant offers no facts about the demeanor of the support
person or the deputy to support his claim of prejudice. “The presence of a second
person at the stand does not require the jury to infer that the support person
believes and endorses the witness‟s testimony, so it does not necessarily bolster
the witness‟s testimony.” (People v. Adams (1993) 19 Cal.App.4th 412, 437.) In
fact, the jury need not have drawn the negative contrast defendant posits.
Unfamiliar with courtroom protocol, jurors may have believed it is standard
procedure for both defendants and their alleged victims to be accompanied when
they testify. Here, the jury saw that the two most important witnesses in the case
were both joined by another individual. Rather than heightening the prejudice
possible from the deputy‟s presence, this circumstance may have made the
practice seem all the more routine. Nor are we persuaded that the stationing of the
deputy was especially prejudicial in this case because the evidence consisted
primarily of the conflicting accounts of the incident given by defendant and his
daughter. In nearly every case when an accused testifies in his own defense, the
jury will have to weigh the credibility of the defendant and the alleged victim.
Finally, defendant argues the trial court abused its discretion by deferring to
a sheriff‟s department policy rather than reaching its own conclusion about
whether to post a deputy at the witness stand. In the shackling context, we have
explained that it is the function of the trial court, not the prosecutor or law
enforcement personnel, to determine whether manifest need supports the use of
physical restraints in the courtroom. (People v. Hill (1998) 17 Cal.4th 800, 841;
Duran, supra, 16 Cal.3d at p. 293, fn. 12; see also People v. Taylor, supra, 31
Cal.3d at p. 496 [trial court erred in adhering to a local jail rule that prevented
defendant from wearing civilian clothing at trial].)
Although we conclude that a heightened showing of manifest need is not
required to justify the stationing of a security officer near the witness stand, the
18
responsibility of the trial court remains the same. The court may not defer
decisionmaking authority to law enforcement officers, but must exercise its own
discretion to determine whether a given security measure is appropriate on a case-
by-case basis. (Spivey v. Head (11th Cir. 2000) 207 F.3d 1263, 1271-1272; cf.
People v. Hill, supra, 17 Cal.4th at pp. 841-842.) Under Holbrook, supra, 475
U.S. at page 570, the trial court has the first responsibility of balancing the need
for heightened security against the risk that additional precautions will prejudice
the accused in the eyes of the jury. “It is that judicial reconciliation of the
competing interests of the person standing trial and of the state providing for the
security of the community that, according to [Supreme Court precedent], provides
the appropriate guarantee of fundamental fairness.” (Lopez v. Thurmer (7th Cir.
2009) 573 F.3d 484, 491.) The trial court should state its reasons for stationing a
guard at or near the witness stand and explain on the record why the need for this
security measure outweighs potential prejudice to the testifying defendant. In
addition, although we impose no sua sponte duty for it to do so, the court should
consider, upon request, giving a cautionary instruction, either at the time of the
defendant‟s testimony or with closing instructions, telling the jury to disregard
security measures related to the defendant‟s custodial status. (See, e.g., Marks,
supra, 31 Cal.4th at p. 223.)
The record in this case could be clearer, but, overall, it demonstrates that
the trial court came to its own conclusion about the stationing of the deputy and
did not abdicate control to law enforcement. Before defendant testified, defense
counsel said that he had heard secondhand about a “policy” of posting a deputy
near the defendant at the witness stand, and he set forth his objections to this
procedure.9 In response, the trial court mentioned a sheriff‟s department “policy

9
No evidence regarding the particulars, or even the existence, of this asserted
policy appears in the record or has been put before this court in a request for
judicial notice. The omission is telling. We have not encountered this “policy” in
19


of having a deputy at the stand with an in-custody [defendant] for safety purposes,
or even to prevent escape.” However, the court‟s full response indicates it was not
blindly adhering to a law enforcement decision. The court observed that it
considered the precaution to be “reasonable,” and noted that “jurors are much
more concerned about their own safety these days anyway.” The court went on to
explain why it believed the presence of a deputy at the witness stand would
actually benefit defendant: “I don‟t want the jury in any way to be distracted by
any of those [safety] concerns, because the jury knows that the Defendant‟s in
custody, and I don‟t want them to have that kind of a distraction when he‟s
testifying. If he decides to testify, it‟s certainly in his best interest not to have the
jury distracted by concerns they have of their own safety. He wants them to listen
to him.” This observation is particularly apt in light of the two juror notes the
court had received remarking on defendant‟s demeanor. In addition, the trial court
observed defendant would not be prejudiced by the procedure because a deputy
had been seated behind defendant throughout the trial, and “[h]aving the deputy in,
basically, the same proximity, . . . will be no more prejudicial than it has been to
that point.”
Although not a model of clarity, these observations indicate the trial court
exercised its own judgment, on a case-specific basis, when it ordered a deputy to
be stationed near the witness stand. The court weighed the matter and concluded
the procedure was appropriate under the circumstances. The trial court was well
aware of defendant‟s volatility, having heard testimony from numerous witnesses
about defendant‟s dramatic attempt to escape from the police, his erratic behavior
during the standoff, and his combativeness after he was taken into custody. The
court had also recently been informed about phone calls defendant had arranged
from jail trying to persuade the victim and her mother to drop the charges against

any other case that has reached us from Alameda County, nor has it been
mentioned in other reported cases from the Court of Appeal.
20


him. The court had concluded these improper contacts represented an attempt to
suborn perjury and were “clearly an implied threat” against the victim and her
family. This record reflects no abuse of discretion.
In summary, we hold as follows. Trial court decisions regarding courtroom
security continue to be reviewed for abuse of discretion. Any exercise of
discretion must be informed by the particular circumstances of a given case.
Many security and decorum procedures are routine and do not run the risk of
prejudice. However, when the court imposes a measure that is inherently
prejudicial to the defendant‟s right to assist in his defense, competently present his
own testimony, or enjoy the presumption of innocence, the trial court must take
particular care. In order to employ an inherently prejudicial procedure, the court
must find a manifest need sufficient to justify the risk of prejudice. When an
inherently prejudicial procedure is employed, a reviewing court will inquire
whether, based on the record below, the trial court reasonably balanced the need
for heightened security against the constitutional rights afforded the defendant.
Only a showing of manifest need will support the use of such measures.
Inherently prejudicial practices include visible shackling, stun belts, or other
affronts to human dignity, or methods that convey to the jury that the defendant
must be separated from the community at large because he is especially dangerous
or culpable, or is the cause of some official concern or alarm. (See Holbrook,
supra, 475 U.S. at p. 569.) Although the stationing of a security officer at the
witness stand during an accused‟s testimony is not an inherently prejudicial
practice, the trial court must exercise its own discretion in ordering such a
procedure and may not simply defer to a generic policy.
21
DISPOSITION
We affirm the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
22




DISSENTING OPINION BY MORENO, J.
Defendant‟s daughter accused him of sexually assaulting her and giving her
drugs; defendant denied doing either. Their testimony constituted the only direct
evidence of what actually occurred. Thus, as Justice Ruvolo aptly noted in his
dissent below, “The jury‟s decision necessarily turned on whether it believed the
version of events testified to by the victim, or by the [defendant] — a classic „she
said/he said‟ trial.” “[T]he evidence presented at trial, although consistent with
guilt, was equivocal and inconclusive. On the one hand, if the victim were
believed, then appellant would be doubtlessly found guilty of the charges. On the
other hand, if appellant were believed, a not guilty verdict was inevitable. [¶] . . .
Therefore, the state of the evidence rendered it critical for the trial judge not to
allow the demeanor, and thus the credibility, of either of the two key witnesses to
be enhanced or diminished unfairly.”
In this case, we consider whether defendant‟s rights were violated when the
trial court permitted a uniformed deputy sheriff to escort defendant to the witness
stand and then sit next to him as he testified. This procedure was not followed for
any other witness. In affirming the Court of Appeal‟s judgment that the trial court
did not abuse its discretion, the majority reasons the security arrangement in this
case was legally indistinguishable from the routine deployment of security
personnel in a courtroom. I disagree.
1


As with the use of physical restraints (Deck v. Missouri (2005) 544 U.S.
622 (Deck)) or prison attire (Estelle v. Williams (1976) 425 U.S. 501 (Estelle)) in
front of a jury, the stationing of a uniformed officer next to a defendant as he or
she testifies is the kind of government action that constitutes an “unmistakable
indication[] of the need to separate a defendant from the community at large”
(Holbrook v. Flynn (1986) 475 U.S. 560, 569 (Holbrook)) and “is likely to lead the
jurors to infer that [a defendant] is a violent person disposed to commit crimes of
the type alleged. [Citations.]” (People v. Duran (1976) 16 Cal.3d 282, 290
(Duran).) Consequently, I would hold that such an unmistakably defendant-
focused security arrangement is inherently prejudicial and permissible only if the
trial court first identifies an essential case-specific state interest justifying its use.
As the majority acknowledges, no such justification (such as, for example,
defendant posing a security or flight risk) was identified in this case in support of
the trial court‟s decision to permit the security measure. I would thus reverse the
judgment of the Court of Appeal and remand the matter for a new trial. I therefore
dissent.
I.
As the majority relates the facts of this case, I do not repeat them, and
instead focus on the security arrangement at issue here.
Throughout the trial, while defendant was at the defense table, an Alameda
County deputy sheriff sat behind him. During a recess on the day defendant
testified, defense counsel indicated that the trial court and the courtroom deputies
had informed him that, pursuant to policy, a deputy sheriff would accompany
defendant to the witness stand and sit next to him as he testified. Defense counsel
objected to the arrangement, arguing that stationing a deputy next to defendant on
the stand would be tantamount to a “human shackle” that, absent a determination
of good cause specific to the trial, would violate both the federal and state
2
Constitutions. Defense counsel further pointed out that there was no evidence
suggesting defendant posed a safety or flight risk.
The trial court overruled the objection. In explaining its ruling, the trial
court equated a deputy sitting next to defendant as he testified with a deputy sitting
behind defendant while at the defense table; the court stated the former would “be
no more prejudicial” than the latter. The trial court also indicated the “Sheriff‟s
Department policy of having a deputy at the stand with an in-custody [defendant]
for safety purposes, or even to prevent escape, is certainly reasonable . . . .”
Finally, the trial court commented that a previous juror had expressed discomfort
“with a police officer in full uniform with a weapon sitting at the witness stand.
And I don‟t want the jury in any way to be distracted by those concerns . . . .”1 A
uniformed deputy sheriff2 subsequently escorted3 defendant to the witness stand
and sat immediately next to him as he testified.

1
As the majority notes (maj. opn., ante, at p. 5), the prosecutor also
remarked that defendant had become agitated in the presence of some deputies and
one of the jurors had noticed his agitation. The record demonstrates, however, that
the trial court did not base its ruling on the prosecutor‟s assertion. Moreover, it
was later clarified that the juror referred to by the prosecutor did not feel
threatened by defendant. (Ibid.)
2
There is some confusion over whether the deputy was armed. The majority
and dissenting opinions below describe the deputy as armed, but the record itself is
silent on the subject. (Maj. opn., ante, at p. 4, fn. 1.) Whether the deputy was
armed does not alter my conclusion.
3
The majority suggests it is alternatively possible that a deputy deployed
elsewhere in the courtroom simply moved to the vicinity of the witness box (rather
than the deputy seated behind defendant at the defense table escorting defendant to
the stand). (Maj. opn., ante, at p. 10, fn. 4.) However, after noting a deputy was
seated behind defendant throughout the trial, the trial court then stated, “[h]aving
the deputy in, basically, the same proximity, I think, will be no more prejudicial
. . . .” (Italics added.) The reasonable inference to be drawn is that the same
deputy that had been seated behind defendant, left his or her position to escort
defendant to the stand.
3



On appeal, a divided Court of Appeal affirmed defendant‟s conviction. The
majority concluded the security arrangement was comparable to the routine
stationing of security personnel in a courtroom and is therefore reviewed for abuse
of discretion. On the other hand, the dissent reasoned that having a deputy escort
defendant to the stand and then, in the jury‟s direct view, sit next to defendant as
he testified implicates the same concerns cited in federal and state shackling cases;
thus, adoption of the security measures should have been preceded by a finding of
a case-specific state interest.
II.
I begin by briefly discussing the well-established law governing, on the one
hand, inherently prejudicial measures such as the use of prison attire or physical
restraints during a criminal trial and, on the other hand, the general deployment of
courtroom security personnel.
A.
The United States Supreme Court has closely scrutinized courtroom
practices that risk undermining the fairness of the criminal fact finding process by
diluting the presumption of innocence. For example, in Estelle, supra, 425 U.S. at
pages 504 to 505, the court held that compelling a defendant to wear prison garb in
front of the jury could infect the jury‟s judgment and posed an “unacceptable risk

The majority also indicates the record is silent as to where the deputy was
stationed during defendant‟s testimony. (Maj. opn., ante, at pp. 10-11, fn. 4.) To
the contrary, when objecting to the arrangement, defense counsel stated the deputy
would be seated next to defendant on the witness stand. And, after defendant
testified, counsel stated for the record that the officer had been “with [defendant]
up on the stand next to him . . . .” Neither the trial court nor the prosecutor
disagreed with defense counsel‟s characterization of the security arrangement.
Nor does the Attorney General contest defendant‟s description of the layout. I
therefore find no reason to quibble with Justice Ruvolo‟s conclusion that the
deputy “s[a]t right beside the accused” in full view of the jury.
4


. . . of impermissible factors coming into play. [Citation.]” The court noted that
the use of prison attire could “ „have a significant effect on the jury‟s feelings . . .‟
[citation]” while serving no essential state policy. (Id. at p. 505.) The court also
noted that a policy requiring only in-custody defendants to wear prison attire, such
as the one at issue in that case, posed a potential violation of equal protection
principles.4 (Estelle, at pp. 505-506.)
Similarly, both the high court and this court have closely examined the use
of physical restraints visible to the jury during a criminal trial, requiring a trial
court to first determine that their use was justified by a state interest specific to the
trial. (Deck, supra, 544 U.S. at p. 629; Duran, supra, 16 Cal.3d at pp. 290-291.)
This rule has long been in effect in this state. (See People v. Harrington (1871) 42
Cal. 165, 168 [finding prejudicial error where physical restraints were used
without a finding of “evident necessity”].) One reason for the “[j]udicial hostility”
to physical restraints is that, as with prison attire, the use of such measures
“undermines the presumption of innocence and the related fairness of the
factfinding process. [Citation.] It suggests to the jury that the justice system itself
sees a „need to separate a defendant from the community at large.‟ [Citations.]”
(Deck, at pp. 630-631; Duran, at p. 290 [A 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. [Citations.]”].)

4
Although the trial court here indicated the Alameda County Sheriff‟s
Department has a policy of accompanying all in-custody defendants to the stand (a
statement unchallenged by the prosecutor or the deputy sheriff in the courtroom),
the majority suggests no such policy exists. (Maj. opn., ante, at pp. 19-20, fn. 9.)
I reach no conclusion on this point; however, if such a policy exists, it would seem
to raise the same potential equal protection violation discussed in Estelle, supra,
425 U.S. at pages 505 to 506.
5


Despite these concerns, like the high court, we have nevertheless
acknowledged that there are occasions when trial judges may be warranted in
restraining defendants, for example, when a defendant poses a safety or flight risk
or when a defendant disrupts the proceedings or otherwise engages in
nonconforming behavior. (Deck, supra, 544 U.S. at p. 632; Duran, supra, 16
Cal.3d at p. 291.) However, we have emphasized that the need for using physical
restraints must appear as a matter of record and that the restraints should be as
unobtrusive as possible, although as effective as necessary under the circumstance.
(Duran, at p. 291.)
B.
In contrast to the scrutiny applied to inherently prejudicial practices, the
United States Supreme Court and this court have been more deferential to the
general deployment of security personnel in a courtroom, concluding that such
measures do not require a trial court to make a finding of manifest need, but rather
are reviewed for abuse of discretion. (Holbrook, supra, 475 U.S. at pp. 568-569;
People v. Marks (2003) 31 Cal.4th 197, 224 (Marks); Duran, supra, 16 Cal.3d at
p. 291, fn. 8.)
In Holbrook, uniformed security personnel were seated in the first row of
the courtroom‟s spectator section. (Holbrook, supra, 475 U.S. at pp. 568-569.)
The high court concluded the arrangement did not violate the defendant‟s federal
constitutional rights because such a deployment is not “the sort of inherently
prejudicial practice that, like shackling, should be permitted only where justified
by an essential state interest specific to each trial.” (Ibid.) The court explained
that, “[w]hile shackling and prison clothes are unmistakable indications of the
need to separate a defendant from the community at large, the presence of guards
at a defendant‟s trial need not be interpreted as a sign that he is particularly
dangerous or culpable. Jurors may just as easily believe that the officers are there
6
to guard against disruptions emanating from outside the courtroom or to ensure
that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely
possible that jurors will not infer anything at all from the presence of the guards.
If they are placed at some distance from the accused, security officers may well be
perceived more as elements of an impressive drama than as reminders of the
defendant‟s special status.” (Id. at p. 569.)
In Marks, the trial court stationed a deputy sheriff next to and slightly
behind Juror No. 7, “four or five feet” away from the witness stand, as the
defendant testified. (Marks, supra, 31 Cal.4th at p. 223 & fn. 5.) Before doing so,
the trial court noted the defendant had assaulted an attorney in court and a deputy
sheriff during the case, had violated court orders, and had been removed from the
courtroom for being verbally disruptive during the trial.5 (Id. at p. 223.) The
defendant appealed, arguing the trial court was required to identify a manifest
need justifying the security arrangement. (Ibid.) We rejected the claim,
concluding that stationing security personnel to monitor a defendant does not
require a showing of manifest need. (Id. at pp. 223-224.) Echoing Holbrook, we
reasoned “courtroom monitoring by security personnel does not necessarily create
the prejudice created by shackling.” (Ibid.) Unlike the use of restraints, we
concluded, “ „it is entirely possible that jurors will not infer anything at all from
the presence of the guards . . . so long as their numbers or weaponry do not
suggest particular official concern or alarm.‟ ([Holbrook, supra, 475 U.S.] at
p. 569.)” (Marks, at p. 224.)

5
In addition, the defendant’s attorneys requested the trial court use physical
restraints on their client; one was concerned the defendant might attack him during
the trial and the other was worried the defendant would hurt his defense by
committing misconduct in front of the jury. (Marks, supra, 31 Cal.4th at p. 222.)
7


III.
Turning to the security measure at issue here — a uniformed deputy sheriff
escorting defendant to the witness stand and then sitting, in the jury‟s view, next to
him as he testified — I conclude the arrangement is unlike the general deployment
of security personnel in a courtroom, but instead, as with the use of physical
restraints or prison attire, poses a serious risk to the presumption of innocence and
to the right to a fair trial and thus requires a trial court to first find a manifest need
for using such measures. In so concluding, the critical question, as explained by
the United States Supreme Court, is how a security measure will be perceived by
the jury. (Holbrook, supra, 475 U.S. at p. 569.) Will an arrangement be
interpreted as being motivated by the trial court‟s specific concerns about the
defendant, like the use of physical restraints, or will it be viewed as a routine part
of the courtroom drama, like having a bailiff stand near the court clerk?
Contrary to the majority, I believe there can be no reasonable doubt that the
security measure employed here suggested “particular official concern or alarm”
(Holbrook, supra, 475 U.S. at p. 569) about defendant and invited consideration of
impermissible factors (Estelle, supra, 425 U.S. at p. 505). Having a uniformed
officer escort a defendant to the stand and then sit right next to him or her as he or
she testifies suggests to the jury that the trial court has determined a need for
security personnel to interpose themselves between the defendant and the jury box
lest the defendant attempt to attack the jurors or the judge. (See Deck, supra, 544
U.S. at p. 630.) Jurors would also likely infer that the trial court believed the
defendant was disposed to commit the type of crimes with which he or she was
charged. (See Duran, supra, 16 Cal.3d at p. 290.) The fact that a defendant, and
only the defendant, is accompanied by a uniformed guard as he or she testifies
cannot help but “ „have a significant effect on the jury‟s feelings‟ ” (Estelle, at
8
p. 505) and leave the impression that there is a “ „need to separate a defendant
from the community at large.‟ ”6 (Deck, at pp. 630-631.)
The security arrangement at issue stands in stark contrast to the general
deployment of security personnel approved of in Holbrook. As the United States
Supreme Court explained, a jury could reasonably infer that having officers sit in
the first row of the spectator section is not motivated by specific concerns about
the defendant, but is instead intended “to guard against disruptions emanating
from outside the courtroom or to ensure that tense courtroom exchanges do not
erupt into violence. Indeed, it is entirely possible that jurors will not infer
anything at all from the presence of the guards.” (Holbrook, supra, 475 U.S. at
p. 569.) The court continued, “If [guards] are placed at some distance from the
accused, security officers may well be perceived more as elements of an
impressive drama than as reminders of the defendant‟s special status.” (Ibid.,
italics added.)
Nor is the arrangement here like the one we approved of in Marks. There,
the marshal was stationed “next to and slightly behind Juror No. 7.”7 (Marks,

6
In this case, the danger was heightened because, in contrast to defendant‟s
deputy sheriff escort, defendant‟s daughter was accompanied during her testimony
by a support person pursuant to Penal Code section 868.5. The majority dismisses
the risk, reasoning jurors could have simply concluded it was routine for the key
witnesses to be accompanied by another person. (Maj. opn., ante, at pp. 17-18.) It
beggars the imagination that jurors could have drawn such an innocuous inference
from a defendant being accompanied by a uniformed officer during his testimony
while the prosecuting witness was accompanied during her testimony by someone
explicitly identified to the jury as a “victim witness advocate.”
7
The majority correct observes (maj. opn., ante, at p. 11, fn. 5) that in
Marks, supra, 31 Cal. 4th at page 223, the trial court indicated “it would position a
marshal in a chair next to defendant on the raised platform . . . .” However, we
subsequently pointed out that “It appears that the marshal sat four or five feet from
defendant‟s side (facing his ear) next to and slightly behind Juror No. 7.” (Id. at
p. 223, fn. 5.) Not only is the footnote the more specific description of the layout
— it indicates the marshal was stationed next to the jury box (and not, as the
9


supra, 31 Cal.4th at p. 223, fn. 5, italics added.) Not only was the jury able to
watch the defendant testify without having to simultaneously watch an officer
guard the defendant, but nothing in the arrangement suggested particular alarm.
Indeed, the trial court specifically admonished the jury that the marshal sitting
next to the jury box was “ „a perfectly normal procedure.‟ ”8 (Marks, at p. 223.)
Here, of course, defendant‟s uniformed escort remained at his side as he
walked to and from the witness stand and as he testified. It is difficult to imagine
therefore that the jury interpreted the security measure as an “element[] of an
impressive drama [rather] than as [a] reminder[] of the defendant‟s special
status.”9 (Holbrook, supra, 475 U.S. at p. 569.) Nor is it likely the jury believed
that a uniformed escort assigned to defendant alone was providing general security
for the courtroom. The very nature of the arrangement underscored that it was
focused on defendant and the risk he might pose.
Thus, I conclude that, like physical restraints or prison clothing, the security
arrangement in this case was inherently prejudicial and posed a serious risk to the
presumption of innocence and to the right to a fair trial.10 As such, while the

majority implies (maj. opn., ante, at p. 11, fn. 5), in between the jury and
defendant).
8
This is in contrast to the more general instruction given by the trial court in
this case instructing the jury not to consider or speculate about the fact “that the
Defendant is in custody . . . .” (Maj. opn., ante, at p. 17, fn. 8.)
9
Thus, unlike Marks, the jury in this case could not help but see the deputy
sheriff while watching defendant testify.
10
The majority cites two federal court of appeals decisions (Wainwright v.
Lockhart (8th Cir. 1996) 80 F.3d 1226, 1232; United States v. Williams (8th Cir.
1990) 897 F.2d 1430, 1434) and two Illinois state court decisions (People v.
Peeples
(2002) 205 Ill.2d 480, 525-532 [793 N.E.2d 641, 669-672]; People v.
Hughes
(1990) 205 Ill.App.3d 79, 83-84 [562 N.E. 2d 1266, 1269]) that held
otherwise. (Maj. opn., ante, at pp. 15-16.) However, those courts‟ holdings were
based on the notion that there is no legally significant difference between an
officer sitting behind a defendant at the defense table and an officer escorting a
10


measure might be justified under certain circumstances, the trial court should have
first found a manifest need to justify permitting the arrangement. No manifest
need, such as defendant posing a flight or safety risk, was identified by the trial
court in support of the use of a uniformed escort. Rather, the trial court justified
its decision by concluding that the arrangement was no more prejudicial than
having a guard sit behind defendant at the defense table and that the Sheriff‟s
Department justification for its blanket policy of accompanying all in-custody
defendants was reasonable, and by relating an anecdote about a previous juror
being uncomfortable with an armed police officer sitting at the witness stand.
None of these reasons suffice.
Reversal is required unless the state can prove the error was harmless
“beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.)
In applying the Chapman standard to the erroneous use of physical restraints, the
Deck court explained that the use of restraints “will often have negative effects,
but — like „the consequences of compelling a defendant to wear prison clothing‟
or of forcing him to stand trial while medicated — those effects „cannot be shown
from a trial transcript.‟ [Citation.]” (Deck, supra, 535 U.S. at p. 635.) “Thus,
where a court, without adequate justification, orders the defendant to wear
shackles that will be seen by the jury, the defendant need not demonstrate actual
prejudice to make out a due process violation. The State must prove „beyond a
reasonable doubt that the . . . error complained of did not contribute to the verdict
obtained. [Citation.]” (Ibid.) The same is true of the error in this case.
Here, as Justice Ruvolo explained, the evidence at trial was equivocal and
inconclusive and the trial‟s outcome essentially rested on whether the jury

defendant to the stand and sitting next to the defendant as he or she testifies.
Common sense requires the rejection of such a dubious premise.
11


believed defendant or his daughter. For example, although there was some
evidence to corroborate the victim‟s version of events, such as the rock of
“crystal” she gave her grandmother and the red mark on the victim‟s neck, there
was also testimony that the victim had such a mark on her neck on a prior occasion
and that the victim had previously made up a story that she had been stabbed in
order to get defendant to call her. Given the state of the evidence, it cannot be
demonstrated beyond a reasonable doubt that the trial court‟s error did not
contribute to defendant‟s conviction, and it should therefore be reversed.
(Chapman v. California, supra, 386 U.S. at p. 24.) I respectfully dissent.
MORENO, J.
I CONCUR:
KENNARD, J.
12
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Stevens
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 156 Cal.App.4th 537
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S158852
Date Filed: November 5, 2009
__________________________________________________________________________________

Court:

Superior
County: Alameda
Judge: Leopoldo E. Dorado

__________________________________________________________________________________

Attorneys for Appellant:

Alan Charles Dell‟Ario, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Rene A. Chacon, Stan Helfman, Laurence K. Sullivan and Arthur P.
Beever, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Alan Charles Dell‟Ario
Dell'Ario & LeBoeuf
201 Nineteenth Street, Suite 200
Oakland, CA 94612
9510) 763-7700

Arthur P. Beever
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5865


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case includes the following issue: Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to sit immediately beside the defendant during his testimony?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 11/05/200947 Cal. 4th 625, 218 P.3d 272, 101 Cal. Rptr. 3d 14S158852Review - Criminal Appealsubmitted/opinion due

PEOPLE v. HERNANDEZ (S175615)


Parties
1The People (Plaintiff and Respondent)
Represented by Arthur Paul Beever
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Stevens, Lorenzo (Defendant and Appellant)
Represented by Alan Charles Dell'Ario
Dell'Ario & LeBoeuf, PC
201 Nineteenth Street, Suite 200
Oakland, CA


Opinion Authors
OpinionJustice Carol A. Corrigan
ConcurChief Justice Ronald M. George, Justice Kathryn M. Werdegar, Justice Marvin R. Baxter, Justice Ming W. Chin
DissentJustice Carlos R. Moreno, Justice Joyce L. Kennard

Dockets
Dec 7 2007Petition for review filed
  Lorenzo Stevens, Defendant and Appellant. Alan Charles Delll'Ario, counsel
Dec 7 2007Record requested
 
Dec 14 2007Received Court of Appeal record
  file jacket/briefs/sealed envelope/transcripts/accordian file
Jan 25 2008Time extended to grant or deny review
  to and including March 6, 2008
Feb 13 2008Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Werdegar, Moreno, and Corrigan, JJ.)
Mar 3 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Alan Charles Dell'Ario is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty 30) days from the date of this order.
Mar 27 2008Request for extension of time filed
  to and including April 23, 2008, to file appellant's brief on the merits
Apr 4 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file opening brief on the merits is extended to and including April 23, 2008.
Apr 9 2008Issues ordered limited
  Pursuant to rule 8.516 of the California Rules of Court, the issue to be briefed and argued is limited to the following: "Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to sit immediately beside petitioner during his testimony?"
Apr 24 2008Opening brief on the merits filed
  Lorenzo Stevens, defendant and appellant by Alan Charles Dell'Ario, Superme Court appointed counsel CRC 8.25(b)
May 23 2008Request for extension of time filed
  by respondent requesting a 30-day extension to and including June 23, 2008, to file respondent's answer brief on the merits.
May 23 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including June 23, 2008.
Jun 23 2008Answer brief on the merits filed
  Respondent People by Arthur P. Beever, Deputy Attorney General - San Francisco
Jul 8 2008Request for extension of time filed
  to August 11, 2008, to file appellant's reply brief on the merits by Alan Charles Dell'Ario, Supreme Court appointed counsel
Jul 8 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Reply Brief on the Merits is extended to and including August 11, 2008.
Jul 16 2008Motion to dismiss filed (non-AA)
  Respondent People by Arthur P. Beever, Deputy Attorney General
Jul 16 2008Request for judicial notice filed (granted case)
  Respondent People by Arthur P. Beever, Deputy Attorney General
Jul 29 2008Opposition filed
  Appellant Stevens' Opposition to Motion to Dismiss Review and to Motion to Take Judicial Notice by Alan Charles Dell'Ario, Supreme Court appointed counsel
Aug 11 2008Reply brief filed (case fully briefed)
  Appellant Lorenzo Stevens, defendant and appellant by Alan Charles Dell'Ario, Supreme Court appointed counsel
Apr 7 2009Received:
  Letter dated 4-6-2009 from Alan Charles Dell'Ario requesting court not to schedule argument May 8 to 11 and May 21 to June 28 as he will be out of the country.
Jul 14 2009Request for judicial notice granted
  The request for judicial notice filed on July 16, 2008, is granted.
Jul 22 2009Received:
  Letter dated 7-20-2009 from Alan Charles Dell'Ario, counsel for appellant, re new cite.
Jul 31 2009Case ordered on calendar
  to be argued Wednesday, September 2, 2009, at 1:30 p.m., in San Francisco
Aug 21 2009Received:
  Letter dated August 20, 2009, from Alan Charles Cell'Ario, re additional cites.
Sep 2 2009Cause argued and submitted
 
Nov 4 2009Notice of forthcoming opinion posted
  To be filed on Thursday, November 5, 2009 at 10 a.m.

Briefs
Apr 24 2008Opening brief on the merits filed
 
Jun 23 2008Answer brief on the merits filed
 
Aug 11 2008Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 4, 2010
Annotated by elaheh

Issue:
Is the presence of an officer next to a testifying defendant inherently prejudicial and thus only justifiable through a showing of manifest need?

Holding:
Conviction affirmed. The stationing of the officer next to the defendant was not inherently prejudicial.

Reasoning:
Trial court security measures are reviewed through the abuse of discretion standard. Trial courts need to be able to preserve the safety of the courtroom. The court noted that presence of officers in the courtroom is commonplace and expected by jurors. Therefore, the presence and proximity of the officer during the defendant’s testimony is not similar to a human shackle, as it does not create a presumption of the defendant’s guilt or dangerous nature in the eyes of the jurors. It also does not deter from his credibility. The court noted that the jurors could just as easily assume that the presence of the officer was for the defendant’s own safety as the victim’s uncle had previously attacked him. Furthermore, the court stated the presence of the officer also does not disrupt or agitate the defendant in any significant way as to impact his ability to testify. The court did state that a record of the trial court’s reasoning for the stationing of the officer should preferably be clearer than stated here.

Facts:
Defendant called his 14-year-old daughter with whom he did not live and asked her to meet with him. Once she was inside his car, defendant gave his daughter cocaine and insisted she use it. He then began to molest her and she escaped. The victim told her mother who then went with the victim’s uncle to confront the defendant. The victim’s uncle began beating the defendant and the defendant fled. The police pursued the defendant who climbed onto the roof of a neighborhood home and smoked crack cocaine while the police and a crowd surrounded the home and watched him. The police finally apprehended the defendant. Before trial, it was found that the defendant had asked a woman to ask the victim’s mother to drop charges. The court deemed this a threat.
The defendant was told that at trial an officer would be stationed next to him during testimony. He objected, but the trial court cited the dangerous nature of the defendant, as well as the threats the defendant had made, and stated that it was policy. The jurors were told not to infer anything from the fact that the defendant was in custody.
The defendant was then convicted and sentenced to prison.

Procedure:
The defendant alleged that the presence and proximity of the officer during his testimony is akin to a “human shackle,” warranting a showing of manifest need, and that this process violated his due process rights under the fifth and fourteenth amendments. A divided appellate court affirmed the conviction. The Court granted review to determine whether the officer stationed at the witness stand was an abuse of discretion and required a showing of manifest need.

Dissent:
Justice Moreno
Justice Kennard concurring
This was a “he said she said” case. Thus, the credibility of the testimony of both the victim and the defendant are crucial to a fair trial. The stationing of an officer near a testifying defendant is presumptively presidential, as it dilutes the presumption of innocence. It should require a showing of manifest need. Thus, unless the trial court can justify why the officer was needed, the conviction should be overturned.