IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S175615
v.
Ct.App. 1 A119501
ARTURO JESUS HERNANDEZ,
Contra Costa County
Defendant and Appellant.
Super. Ct. No. 050707604
In People v. Stevens (2009) 47 Cal.4th 625, 638 (Stevens), we held 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. We
explained, however, that the trial court must exercise its own discretion and
determine on a case-by-case basis whether such heightened security is appropriate.
(Id. at p. 642.) Here, the trial court did not make a case-specific decision but
instead deferred to a general policy when it stationed a deputy at the witness stand
during defendant‟s testimony. The court erred, but the error was harmless under
People v. Watson (1956) 46 Cal.2d 818 (Watson).
BACKGROUND
Deva Belarde first met defendant outside the senior center in Antioch where
she did volunteer work. About a week and a half later she saw him outside Lone
Tree Liquors. She invited defendant to her house because he looked tired and
dirty and she thought he might be hungry. Belarde said she did this “a lot of times
with people,” and defendant “seemed to be friendly.” They walked to her house,
1
drank, and talked for 20 or 25 minutes. Defendant left when Belarde‟s fiancé
asked him to go.
Around 10:00 p.m. the next night, March 11, 2007, Belarde saw defendant
sitting outside the same liquor store. He was drinking beer and asking people for
money. Belarde sat and talked with defendant for more than an hour. She drank
from a half-pint of vodka and from a beer that defendant bought her. Belarde had
also consumed one 40-ounce beer around 2:00 p.m. and another around 6:00 p.m.
She did not begin feeling intoxicated until she drank the vodka. Defendant
eventually left for the bus stop. Belarde followed. She thought she should
accompany defendant because he was “staggering somewhat.” Defendant,
however, wanted to walk alone. Belarde walked with defendant and put her hand
on his shoulder. At one point, defendant loudly insulted Belarde and accused her
of being a prostitute. Upset, she pushed him and turned to walk away. Defendant
grabbed her by the arm, turned her around, and punched her in the left eye.
Belarde became dizzy and shoved defendant from behind. Defendant shoved
back, hit Belarde on the side of the face with a “stick” or “branch,” then ran off.
Belarde fell down bleeding. She managed to get up and walk to a nearby gas
station, where she fell again. She later identified the branch defendant had used to
hit her.
Antioch Police Officer B. J. Hewitt arrived at the Valero gas station on
Lone Tree Way about 10:25 p.m. Several officers were already on the scene and
an ambulance was departing. After a brief search, Hewitt and other officers found
defendant sitting between some shrubs, 200 to 300 yards from the gas station. His
knuckles were bleeding, his forearm was scraped, and he smelled of alcohol. He
was arrested without incident.
Belarde testified that she did not have a weapon with her and did not punch,
kick, or slap defendant or try to take his wallet. She was 49 years old, stood four
feet 11 inches tall, and weighed about 155 pounds. Defendant was five feet six
inches tall and 175 pounds. The amount of alcohol Belarde had consumed that
2
day was normal for her, and she did not feel “out of control.” Although Belarde
denied having blackouts or seizures related to alcohol consumption, her medical
records reflected several such incidents. She had been unemployed for
approximately three years. On cross-examination, Belarde did not recall many
details about statements she made to medical and police personnel after the
incident. She explained she had been “blocking out things” and trying to forget
the incident. She did not think alcohol had affected her memory.
Paramedic Jennifer Matthews treated Belarde at the scene. Belarde said she
had been hit once in the face with “a stick or a branch . . . by a man who was
trying to rob her.” Belarde said she had consumed a quart of beer. Belarde
appeared upset but not confused. She had bruising and swelling around her left
eye and lip and two cuts in those areas. Belarde told the paramedic she had not
lost consciousness. Photographs taken after the incident showed swelling and
bleeding around Belarde‟s left eye, but the injuries did not require stitches or
surgery. At trial, she still felt swelling and pain to the touch on her cheekbone and
temple. She had difficulty sleeping and continued to feel an “extreme amount of
stress” from the incident. Contrary to what she told the paramedic at the scene,
Belarde testified that she lost consciousness on the night of the assault, though she
did not know for how long.
When Officer Hewitt took a statement from Belarde at the hospital, she
smelled strongly of alcohol and appeared “very upset, traumatized” from the
incident. She was shaking and her face was bruised and bleeding. In an interview
that was played for the jury, Belarde said defendant had gotten drunk and wanted
to go home to his daughter‟s house. When she tried to walk him to the bus, he
“snapped” and hit her in the face. She said defendant hit her three to five times
with his fists and then once with a stick. Belarde denied asking defendant for
money, saying defendant had tried to borrow money from her.
Hewitt looked for the stick along the route Belarde described but did not
find it. The next day, Antioch Police Officer Steve Bergerhouse searched the area
3
where the assault occurred. Near the assault site, he found one long stick, three to
four feet long and half an inch in diameter. He found a shorter stick, about a foot
long and three-quarters of an inch across, on an embankment behind the Valero
gas station. This stick did not match the nearby trees. Belarde identified the
shorter stick as the one used in the assault. There was no blood on the stick and it
was not tested for DNA.
Officer Bergerhouse interviewed Belarde on March 19. She seemed “frail”
and “very shaky” but did not smell of alcohol. Her left eye was swollen closed,
the left side of her face was bruised, and her hands trembled. Belarde told the
officer that defendant said he had $50 and had heard that she was a prostitute. At
one point, defendant “snapped” and began punching her. She tried to cover her
face and did not hit back. Defendant then picked up a wooden stick and hit her
face with it. Officer Bergerhouse acknowledged that there were some
inconsistencies between what Belarde told him and the statements she made to
Officer Hewitt and to medical personnel. Bergerhouse did not ask Belarde about
the inconsistencies. In his experience, victims‟ stories “tend to waiver” in the
retelling. Belarde‟s injuries, statements, and medical records were consistent with
what Bergerhouse found during his investigation, and her statements to him were
generally consistent with what she told Officer Hewitt days earlier.
Defendant was charged with one count of assault with a deadly weapon and
with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)
A personal infliction of great bodily injury clause was attached to that count.
(Pen. Code, § 12022.7, subd. (a).) The information alleged that the charged
offense was a serious felony within the meaning of Penal Code section 1192.7,
subdivision (c).
At trial, defendant‟s version of the events differed significantly from
Belarde‟s. He testified that Belarde first approached him two or three days before
March 11, 2007, when he was drinking a beer and panhandling outside Lone Tree
Liquors. After they drank and talked, he went to her house but stayed no longer
4
than half an hour. On March 11, after he spent time drinking and panhandling
with Belarde outside the liquor store, defendant decided to leave because Belarde
was “getting loud.” He testified he had consumed two 16-ounce beers over the
course of the day. When defendant started to walk to a nearby bus stop, Belarde
followed, hooking her arm through his. She asked him to give her money but he
refused. She “paw[ed]” at him and kept putting her arm around his waist after he
pushed it away. Belarde repeated her request for money, telling defendant he was
a “nice guy” and “making motions” toward the wallet in his back pocket. When
defendant pushed her away, she became angry and called him names. Defendant
put out his arm to keep Belarde away but she pushed it aside and reached for his
wallet. He got mad and pushed her “pretty much harder than before,” and she
“went down on one knee.” Defendant tried to walk faster but Belarde “just came
at me just wild, screaming,” hitting his back and reaching for his wallet. Angry,
he turned and grabbed Belarde in a headlock, but she broke free. She came at him
again, “swinging wildly and then yelling all kinds of stuff.” Defendant testified
that he grabbed Belarde by the back of the neck and her jeans and “threw her on
her face.” He explained he was “pretty pissed” and “just slammed her, threw her.”
He saw her land on her face but “didn‟t mean to do that.” When Belarde stood,
she was bleeding and swearing. Defendant denied punching Belarde or
“throw[ing] any blows” and denied having used the stick she identified.
Defendant agreed that Belarde sustained “serious injuries” but insisted he was
defending himself and did not intend to cause them. Soon, a group of people
approached from a nearby gas station. Defendant panicked, ran down the street to
a church parking lot, and hid behind some bushes. He feared that he would be
arrested and no one would believe his story.
In a videotaped interview shown to the jury, defendant admitted he hit
Belarde but claimed he acted in self-defense. He said he did not know Belarde
and insinuated that she was a prostitute who had pursued him. He told the police
Belarde had dragged him and chased him down the block and also claimed
5
Belarde had tried to stab him, but at trial he admitted these statements were lies.
Defendant initially told the police he had bloodied his knuckles in a fall, but at
trial he said he scraped them when crawling through bushes.
Defendant took the witness stand near the end of an afternoon. A
courtroom deputy followed him to the stand and stood behind him while he
testified. This procedure had not been mentioned or discussed with the attorneys
beforehand. Defense counsel did not object to the deputy‟s presence that
afternoon but raised the issue before defendant‟s testimony resumed the following
morning. Counsel explained she did not object before because she was afraid of
highlighting the issue for the jury. She protested that the deputy‟s stationing was
“inappropriate” because defendant was “the only witness who . . . had an armed
guard behind him when he testified.” Counsel said she had never seen this
procedure used “[i]n the 50 or so trials [she had] done.” The court countered:
“I‟ve seen it happen in every trial I‟ve ever done and that is because of security.
And the defendant, as all defendants, even in a petty theft, if they sit there, a bailiff
is supposed to sit behind them for security of the jury, for security of everyone.”
When counsel complained there had been no showing defendant was a security
risk and compared the deputy‟s presence to shackling, the court disagreed, noting
defendant was accused of aggravated assault “with a very bad injury.” Referring
to defendant‟s testimony the previous day, the court stated, “I was actually afraid
you were going to have him stand up and point to something, and he would get
really close to a juror.” The court concluded, “No, the deputy will sit back there.
He‟s not shackled, nothing. It‟s just what happens in every case that I‟ve ever
tried.”
Defense counsel objected that the deputy‟s presence was “highly
prejudicial” and asked that the court “at least make an individualized finding” that
the security measure was warranted based on defendant‟s “own individual factors,
and not just because he‟s here and charged with a crime.” Counsel noted that
defendant had not behaved violently while in custody or during court proceedings,
6
and in fact he had no history of violence except for the alleged incident with
Belarde. Because nothing else suggested that defendant had a violent disposition,
counsel argued it was highly prejudicial for him to walk to the stand accompanied
by an armed guard. The court responded: “Well, I disagree, and it‟s a
discretionary call. And he had an 18-page rap sheet. And I think he deserves what
every defendant deserves, and that is security for himself and for all the rest of
us.” Counsel protested that many of the offenses on the rap sheet were restraining
order violations arising from defendant‟s relationship with his ex-wife. The court
responded that these violations indicated defendant‟s “inability to follow the
orders of the Court,” a fact that was “[k]ind of important.” When asked if it had
reviewed the restraining order violations to see whether defendant had acted
violently, the court responded, “I don‟t need to. He—what he does is he does not
follow the orders of the Court.”
After defendant testified, his attorney asked the court to read the jury a
modified version of CALCRIM No. 204 that would instruct them to ignore
defendant‟s custodial status. The court refused, observing that defendant had not
been shackled or restrained, but rather was sitting in court “in plain clothes” and
“reading a book.” Despite the absence of this instruction, defense counsel
explained to the jury in closing argument that defendant‟s custodial status was
irrelevant. She emphasized that although defendant was “the only person who
ha[d] an armed guard standing behind him” when he testified, and this seemed to
communicate that he was guilty, it was the jurors‟ duty to ignore these
circumstances and decide the case by impartially examining the evidence and
applying the presumption of innocence.
The jury convicted defendant of assault with force likely to produce great
bodily injury and found that he had personally inflicted great bodily injury in
committing the offense. The jury did not find that defendant had used a deadly
weapon. He was sentenced to five years in prison. On appeal, defendant claimed
the trial court abused its discretion and violated his due process rights by
7
stationing a uniformed, armed deputy at the witness stand during his testimony.
He also asserted several points of error concerning the great bodily injury
enhancement.1 Defendant argued in a related petition for writ of habeas corpus
that he was denied effective assistance of counsel by his attorney‟s delayed
objection to the stationing of the deputy and by counsel‟s failure to ask the court to
strike the great bodily injury enhancement.
In an opinion issued shortly before our decision in Stevens, supra, 47
Cal.4th 625, a divided panel of the Court of Appeal concluded the stationing of an
armed deputy at the witness stand during defendant‟s testimony was reversible
error.2 As a result of this decision, the court did not reach issues raised in
defendant‟s petition for writ of habeas corpus and dismissed that petition as moot.3
Justice Haerle dissented. Although he joined the majority in criticizing the trial
court‟s stated reasons for stationing a deputy at the witness stand, Justice Haerle
urged that any lack of clarity in the record had to be interpreted in favor of a
conclusion that the court had properly exercised its discretion.
We granted review to determine whether the stationing of the deputy was
error and, if so, whether it was harmless.
1
Specifically, defendant argued the court erred in failing to instruct that the
enhancement had to be proven beyond a reasonable doubt and failing to recognize
it had discretion to strike the enhancement. He also claimed his attorney rendered
ineffective assistance by failing to request that the enhancement be stricken.
2
The appellate court also found instructional error regarding the great bodily
injury enhancement but, in light of its reversal on other grounds, did not decide
whether the error was prejudicial.
3
We declined defendant‟s request for judicial notice of the contents of
declarations in support of his habeas corpus petition. “[W]hile courts are free to
take judicial notice of the existence of each document in a court file, including the
truth of results reached, they may not take judicial notice of the truth of hearsay
statements in decisions and court files.” (Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)
8
DISCUSSION
I.
Courts Must Exercise Discretion in Ordering Heightened Security
Decisions to employ security measures in the courtroom are reviewed on
appeal for abuse of discretion. (Stevens, supra, 47 Cal.4th at p. 632; People v.
Duran (1976) 16 Cal.3d 282, 293, fn. 12 (Duran).)
Many courtroom security procedures are routine and do not impinge on a
defendant‟s ability to present a defense or enjoy the presumption of innocence.
(Stevens, supra, 47 Cal.4th at p. 643.) However, some security practices
inordinately risk prejudice to a defendant‟s right to a fair trial and must be justified
by a higher showing of need. 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;
Duran, supra, 16 Cal.3d at pp. 290-291.) Because physical restraints carry such
risks, their use is considered inherently prejudicial and must be justified by a
particularized showing of manifest need. (Duran, at pp. 290-291; see Deck v.
Missouri, at pp. 626-629; Illinois v. Allen (1970) 397 U.S. 337, 343-344; see also
Stevens, at pp. 643-644.)
We recently considered whether the stationing of a uniformed deputy at the
witness stand during a defendant‟s testimony is such an inherently prejudicial
procedure that it must be subjected to heightened scrutiny. Like the Court of
Appeal majority in this case, the defendant in Stevens characterized the deputy as a
“human shackle” whose presence at the witness stand improperly focused the
jury‟s attention on his custodial status. (Stevens, supra, 47 Cal.4th at p. 636.) We
rejected this argument and held that a security officer‟s presence near a testifying
defendant is not inherently prejudicial. (Id. at p. 638.) We observed, “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, a court‟s decision to permit a deputy‟s presence near the defendant at
9
the witness stand is consistent with the decorum of courtroom proceedings.” (Id.
at p. 639, fn. omitted.)
However, despite our conclusion that this practice is not inherently
prejudicial, we cautioned that “the trial court must exercise its own discretion in
ordering such a procedure and may not simply defer to a generic policy.”
(Stevens, supra, 47 Cal.4th at p. 644.) We explained: “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. [Citations.] Under Holbrook [v. Flynn (1986)] 475 U.S. [560,] 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., [People v.] Marks [(2003)] 31 Cal.4th
[197,] 223.)” (Stevens, supra, 47 Cal.4th at p. 642.)
Here, the record demonstrates that the trial court‟s decision to station a
deputy at the witness stand during defendant‟s testimony was not based on a
thoughtful, case-specific consideration of the need for heightened security, or of
the potential prejudice that might result. The court asserted that it had seen a
deputy at the witness stand “in every trial I‟ve ever done . . . because of security,”
and noted that a bailiff was “supposed” to sit behind “all defendants” who testify,
10
“even in a petty theft” case. Despite a pointed request from defense counsel, the
court refused to make an individualized finding that defendant‟s behavior
warranted this heightened security measure. Instead, the court responded that this
defendant “deserve[d]” to have a deputy stationed at the witness stand for the
same basic security reasons “every defendant deserve[d]” to have this procedure
employed. These remarks reveal that the court was following a general policy of
stationing a courtroom officer at the witness stand during any criminal defendant‟s
testimony, regardless of specific facts about the defendant or the nature of the
alleged crime.
The trial court did refer briefly to some case-specific matters. It is evident
from consideration of the entire record, however, that the court elevated a standard
policy above these individualized concerns and based its decision on the generic
policy. For example, the court mentioned that defendant was accused of inflicting
a “very bad injury” and had a long rap sheet with several restraining order
violations, but these brief statements were made in response to defense counsel‟s
observations after the court had twice ruled that the deputy would remain at the
witness stand. The court then refused counsel‟s request that it determine whether
any of the restraining order incidents involved violence. The discussion as a
whole reveals that the court perceived this to be a routine order, and the court‟s
scattered references to individualized facts constituted, at most, an effort to
construct a post hoc justification for a security measure the court had already
decided to employ pursuant to its standard policy. While the court did
characterize the order as “a discretionary call,” it made clear that the deputy‟s
placement at the witness stand was “just what happens in every case that I’ve ever
tried.” (Italics added.)4
4
The court‟s statement about stationing a bailiff at the witness stand “in
every trial” oddly contradicts defense counsel‟s statement that she had never
encountered the practice in the “50 or so” cases she had tried. It is remarkable that
a judge and trial lawyer in the same county would report such different
11
The circumstances of the trial also indicate that the judge stationed the
deputy at the witness stand as a routine practice, and not based on case-specific
considerations. There was no discussion of the deputy following defendant to the
stand before it happened. Defense counsel said the procedure took her by surprise.
She had never seen it done before, and she would have objected to the deputy‟s
presence if she had known the court intended to order it. The court did not discuss
the matter with counsel, did not hear case-specific rationales for increased
security, and did not state reasons on the record before imposing the security
measure. All of these circumstances further support our conclusion that the court
ordered the deputy‟s presence as a matter of routine.
Where it is clear that a heightened security measure was ordered based on a
standing practice, the order constitutes an abuse of discretion, and an appellate
court will not examine the record in search of valid, case-specific reasons to
support the order. Trial judges should be mindful of their duty to state the reasons
for their decisions on the record. As we have explained in the context of
sentencing decisions, “a requirement of articulated reasons to support a given
decision serves a number of interests: it is frequently essential to meaningful
review; it acts as an inherent guard against careless decisions, insuring that the
judge himself analyzes the problem and recognizes the grounds for his decision;
and it aids in preserving public confidence in the decision-making process by
helping to persuade the parties and the public that the decision-making is careful,
reasoned and equitable.” (People v. Martin (1986) 42 Cal.3d 437, 449-450; see
also People v. Penoli (1996) 46 Cal.App.4th 298, 303.) Here, the colloquy
between the court and counsel shows that the court did not base its security order
on case-specific reasons because it believed stationing a deputy at the witness
stand during a defendant‟s testimony was an acceptable routine practice. The
experiences. As we made clear in Stevens, supra, 47 Cal.4th at page 642, this
heightened security measure should never be ordered as a routine matter.
12
court‟s reliance on this standard practice, instead of on individualized facts
showing that defendant posed a safety risk or flight risk, or a risk of otherwise
disrupting the proceedings, was an abuse of discretion.5
II.
Harmless Error Standard of Watson Applies
Having determined the court abused its discretion by stationing a deputy at
the witness stand during defendant‟s testimony out of deference to a generic
policy, we must now decide when such an error warrants reversal of the
conviction.6 If an error violates a defendant‟s federal constitutional rights,
reversal is required unless the error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) If the error is one of
state law, we must reverse the conviction if it is reasonably probable the defendant
would have obtained a more favorable result absent the error. (Watson, supra, 46
Cal.2d at p. 837.)
The majority below assumed the Chapman standard applied but did not
decide the question directly.7 The parties have directed us to no case discussing
the appropriate standard of harmless error. Despite defendant‟s contrary position
5
The court‟s refusal to give a cautionary instruction in this case is also
troubling. In Stevens, supra, 47 Cal.4th at page 642, we advised trial courts to
consider, upon request, instructing the jury to disregard security measures related
to the defendant‟s custodial status. We emphasize that the trial court should give
such a cautionary instruction when the defendant requests it, or should explain on
the record the reasons why it has been refused.
6
Defendant urges us to remand the case to the Court of Appeal because that
court “has not been afforded a full opportunity to consider and resolve the
question of prejudice.” We decline to do so because the Court of Appeal‟s
majority closely and thoroughly examined the evidence, albeit under what we
conclude was the wrong standard of review. There is no need for that court to
repeat the same prejudice analysis on remand.
7
The Court of Appeal never cited Chapman, but the majority reasoned that
the “same standard of review” used in shackling cases should apply, and, under
the facts of this case, it concluded the deputy‟s placement at the witness stand
could not be viewed as harmless “to the certainty of the beyond a reasonable doubt
standard.”
13
in the Court of Appeal, both sides now appear to agree that the reasoning of our
opinion in Stevens, supra, 47 Cal.4th 625, indicates the error is appropriately
reviewed under Watson. We agree that the error in this case is one of state law
and that Watson governs our harmless error analysis.
The United States Supreme Court has held that the unjustified imposition of
visible physical restraints violates a criminal defendant‟s right to due process
under the Fifth and Fourteenth Amendments to the federal Constitution. (Deck v.
Missouri, supra, 544 U.S. at p. 629.) In such a case, the defendant need not
demonstrate actual prejudice because the high court has held that shackling is an
inherently prejudicial practice. (Id. at p. 635; see also Holbrook v. Flynn, supra,
475 U.S. at p. 568.) Accordingly, when a trial court orders visible shackles
without adequate justification, the People must show beyond a reasonable doubt
that the error did not contribute to the verdict. (Deck v. Missouri, at p. 635;
Chapman, supra, 386 U.S. at p. 24.)
Although the high court has held that Chapman furnishes the appropriate
harmless error test for claims of unjustified visible shackling, it does not follow
that Chapman should govern review of errors in imposing security procedures that
are not inherently prejudicial. An inherently prejudicial procedure is one that
poses such a high risk of unfairness to the defendant that its use is considered to be
a violation of due process unless justified by a compelling state interest. (Deck v.
Missouri, supra, 544 U.S. at p. 628.) Procedures recognized as inherently
prejudicial typically offend the dignity of the defendant and the decorum of the
court. They not only erode the presumption of innocence, but they may so distract
and embarrass the defendant that they impair his ability to participate in his own
defense. (Stevens, supra, 47 Cal.4th at pp. 632-633; see also People v. Mar (2002)
28 Cal.4th 1201, 1226-1228; Duran, supra, 16 Cal.3d at p. 288.) The United
States Supreme Court has held that criminal defendants have a due process right to
be free from inherently prejudicial security measures such as shackles, and the
unjustified imposition of such measures is an error of constitutional dimension.
14
(Deck v. Missouri, at p. 628.) However, the high court has never suggested that
errors related to more benign security measures must also be subjected to
heightened constitutional scrutiny. On the contrary, when a challenged practice is
not “so inherently prejudicial as to pose an unacceptable threat to defendant‟s right
to a fair trial,” the court has held that reversal is warranted only if the defendant
shows “actual prejudice” resulted from the practice. (Holbrook v. Flynn, supra,
475 U.S. at p. 572.) This requirement that the defendant demonstrate actual
prejudice is consistent with the defendant‟s burden under Watson, supra, 46
Cal.2d at page 837, to establish a reasonable probability that error affected the
trial‟s result.
We recently held that the stationing of a security officer at the witness stand
during an accused‟s testimony is not an inherently prejudicial practice. (Stevens,
supra, 47 Cal.4th at p. 638.) We cautioned that the court must nevertheless
exercise discretion and make a record of case-specific reasons for ordering this
procedure; however, a court‟s failure to do so does not rise to the level of a
constitutional violation. It is an error of state law properly reviewed under
Watson, supra, 46 Cal.2d at page 837.
Here, although the trial court abused its discretion in stationing an officer at
the witness stand based on a routine policy, it is not reasonably probable that
defendant would have obtained a more favorable result absent the error.
Defendant was monitored by a single deputy, and, as in Stevens, supra, 47 Cal.4th
at page 639 and footnote 6, nothing in the record suggests that this deputy‟s
demeanor was anything other than respectful and appropriate. Besides the
deputy‟s presence, the jury had little indication that defendant was in protective
custody. He wore street clothes to trial and did not enter the courtroom through a
different door.
Defendant asserts the case was close because “the result necessarily
depended on the jury‟s evaluation of the credibility of appellant versus that of
Belarde.” But this aspect of the case is not unique. “In nearly every case when an
15
accused testifies in his own defense, the jury will have to weigh the credibility of
the defendant and the alleged victim.” (Stevens, supra, 47 Cal.4th at p. 641.)
Although defendant now focuses on inconsistencies in Belarde‟s statements, he
admitted some significant lies and inconsistencies during his own testimony. For
example, he initially told the police Belarde had dragged him, chased him down
the street, and tried to stab him with a knife. He later admitted these were lies.
Defendant also gave inconsistent accounts of how he bloodied his knuckles, first
claiming the scrapes occurred in a fall, and later saying they happened when he
crawled through bushes in an attempt to hide.
Finally, the evidence presented at trial strongly supports the jury‟s verdict.
Defendant admitted that he assaulted Belarde and caused her to suffer significant
injuries. Thus, the only issues for the jury concerned whether defendant acted in
reasonable self defense, i.e., that he reasonably believed he was in imminent
danger of violence, reasonably believed the immediate use of force was necessary
to defend himself, and used no more force than was reasonably necessary to
defend against the threat. (See CALCRIM No. 3470.)
The evidence supporting defendant‟s self-defense claim was markedly
weak. Belarde was under five feet tall. Defendant told the police she was “a little
girl” and said, “she punched me, but she didn‟t hurt me.” He also admitted that he
assaulted Belarde out of anger, not fear of imminent harm, and that he used
substantial force. Defendant testified that when Belarde reached toward his wallet
he “got mad” and, as a result, “pushed her pretty much harder than before.” When
she did not leave him alone, defendant grabbed her in a headlock because he was
“pretty pissed.” He explained, “I was very mad. I had lost it — my temper, and I
grabbed her, and just threw her on the ground.” At another point, defendant said
that he “just slammed her” to the ground face first. Defendant never testified that
he was afraid Belarde would hurt him, or that he believed force was necessary to
defend against such potential violence. Rather, he conceded that he lost his
temper and used excessive force to push Belarde away. Defendant also admitted
16
that his use of force caused Belarde to suffer “serious injuries.” Indeed, in contrast
to the disfiguring injuries Belarde suffered, defendant‟s only injuries were
bleeding knuckles, which may have resulted from hitting Belarde, and a scraped
forearm. Although defendant testified he did not mean to throw Belarde onto her
face, or throw her down with such force, these facts do not aid his defense because
assault is a general intent crime. It does not require a specific intent to injure the
victim. (People v. Williams (2001) 26 Cal.4th 779, 788; see also People v. Wyatt
(2010) 48 Cal.4th 776, 780.) Defendant‟s own testimony thus defeats the claim
that he acted in self defense. Defendant‟s flight from the scene was also
inconsistent with self-defense.
The evidence from both the prosecution and defense showed that defendant
assaulted Belarde because he was angry with her, not because he believed he was
in imminent danger, and that in doing so he inflicted serious injuries.8
Accordingly, it is not reasonably probable defendant would have obtained a more
favorable result without the deputy stationed at the witness stand, and the error in
this case was harmless. (Watson, supra, 46 Cal.2d at p. 837.)
8
One can also infer the jury‟s ability to assess this evidence fairly from the
verdicts. The jury convicted defendant of assault with great bodily injury but also
found he did not commit the assault with a deadly weapon, as alternatively
charged. Thus, jurors did not blindly vote to convict because they perceived
defendant to be dangerous. Instead, they differentiated between the two types of
assault and appear to have credited defendant‟s testimony that he did not hit
Belarde with a branch or stick.
17
DISPOSITION
The judgment of the Court of Appeal is reversed, and the case is remanded
for further proceedings consistent with this opinion.9
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
9
The Court of Appeal found that the trial court erred in failing to give a
predeliberation instruction on the burden of proof for the great bodily injury
enhancement, but it did not determine whether defendant was prejudiced by the
error. This issue was not encompassed in our grant of review. On remand, the
Court of Appeal should decide whether reversal is required due to the instructional
error.
18
CONCURRING AND DISSENTING OPINION BY MORENO, J.
I agree with the majority that the trial court erred and that the error was
harmless. I disagree, however, with the harmless error test the majority employs.
In People v. Stevens (2009) 47 Cal.4th 625, 643 (Stevens), this court held
that a trial court‟s decision to have a uniformed deputy sheriff escort a defendant
to the witness stand and then stay by him as he testifies is reviewed for abuse of
discretion. I dissented and concluded that, under decisions of this court as well as
those of the United States Supreme Court, “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.”
(Id. at pp. 644-645 (dis. opn. of Moreno, J.).) A little over a year later, we find
ourselves reviewing the use of a nearly identical procedure — a uniformed, armed
deputy sheriff escorted defendant to the witness stand and then stood behind him
as he testified. I hold to my position that such an arrangement is inherently
prejudicial; I nonetheless concur in the majority‟s judgment that the trial court
here erred, even under the less rigorous standard adopted in Stevens.
The majority then concludes the question of whether the error was harmless
should be decided under the test articulated in People v. Watson (1956) 46 Cal.2d
818, 837, that is, whether it is reasonably probable defendant would have obtained
a more favorable result absent the error. Because I believe the security
arrangement was inherently prejudicial, however, I would apply the more stringent
1
standard in Chapman v. California (1967) 386 U.S. 18, 24 [asking whether an
error was harmless beyond a reasonable doubt].
Having only recently laid out the reasons why measures such as the ones
employed here are inherently prejudicial (Stevens, supra, 47 Cal.4th at pp. 644-
652 (dis. opn. of Moreno, J.)), I will not unduly belabor the point. However, a
description of the measures bears brief mention.
A deputy sheriff sat behind defendant throughout the proceedings. When it
came time for defendant to testify, the armed, uniformed deputy sheriff escorted
defendant to the witness stand and then stood closely behind him as he testified.
When defendant finished testifying, the deputy sheriff escorted defendant back to
the defense table and sat back down behind the defendant. When defendant
testified again the next day, the arrangement was repeated. An armed, uniformed
deputy sheriff did not escort any other witness.
In Holbrook v. Flynn (1986) 475 U.S. 560 (Holbrook), the high court
reviewed for abuse of discretion the stationing of uniformed personnel in the first
row of the courtroom‟s spectator section. In concluding the arrangement was not
inherently prejudicial (unlike the use of shackles or prison clothes), 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
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.)
2
In Stevens, the majority concluded measures such as the ones used here
could reasonably have been interpreted by a jury as a routine precaution or used
for defendant‟s benefit. (Stevens, supra, 47 Cal.4th at pp. 640-641.) I am, to put it
mildly, skeptical. When an individual, charged with assault with a deadly weapon,
is escorted to the stand by an armed guard, when that armed guard stands behind
him as he testifies before escorting him back to the defense table, and when no
other witness is similarly escorted, I think the only reasonable interpretation a jury
could draw from the use of this protocol is that the trial court thinks defendant is
“particularly dangerous or culpable” “suggest[ing] particular official concern or
alarm.” (Holbrook, supra, 475 U.S. at p. 569.) For that reason, I continue to
believe that the use of such measures is inherently prejudicial, “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.”
(Stevens, at p. 649 (dis. opn. by Moreno, J.).)
Here, of course, the trial court failed to identify any individualized reason
for using an armed, uniformed escort, much less a manifest need. The use of such
an inherently prejudicial measure “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.‟ ” (Deck v. Missouri (2005) 544 U.S. 622, 635.) For that reason, when
a court employs such a procedure “without adequate justification, . . . the
defendant need not demonstrate actual prejudice to make out a due process
violation.” (Ibid.) The state must prove the error was harmless beyond a
reasonable doubt. (Ibid., citing Chapman v. California, supra, 386 U.S. at p. 24.)
I nonetheless conclude the error here was harmless even under the
Chapman standard. Defendant‟s testimony essentially admitted every element of
3
the charged offense without providing substantial evidence of any affirmative
defense. On this basis, I concur in the judgment.
MORENO, J.
I CONCUR: KENNARD, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Hernandez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 175 Cal.App.4th 940
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S175615Date Filed: February 28, 2011
__________________________________________________________________________________
Court:
SuperiorCounty: Contra Costa
Judge: Nancy Davis Stark
__________________________________________________________________________________
Counsel:
Gail E. Chesney, under appointment by the Supreme Court, for Defendant and Appellant.Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Donald E. DeNicola, Deputy State
Solicitor General, Laurence K. Sullivan, Rene A. Chacon, Joan Killeen and Nanette Winaker, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Gail E. ChesneyP.O. Box 27233
San Francisco, CA 94127-0233
(415) 509-2819
Nanette Winaker
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5934
Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case presents the following issue: Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to stand or sit immediately behind the defendant during his testimony?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 02/28/2011 | 51 Cal. 4th 733, 247 P.3d 167, 121 Cal. Rptr. 3d 103 | S175615 | Review - Criminal Appeal | submitted/opinion due | PEOPLE v. STEVENS (S158852) |
| 1 | The People (Plaintiff and Respondent) Represented by Joan E. Killeen Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Nanette Winaker Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 3 | Hernandez, Arturo Jesus (Defendant and Appellant) San Quentin State Prison San Quentin, CA 94974 Represented by Gail Chesney Law Offices of Gail E. Chesney P.O. Box 27233 San Francisco, CA |
| Opinion Authors | |
| Opinion | Justice Carol A. Corrigan |
| Concur | Justice Carlos R. Moreno |
| Dockets | |
| Aug 18 2009 | Petition for review filed Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen |
| Aug 18 2009 | Record requested |
| Aug 19 2009 | Received Court of Appeal record A119501-file jacket/briefs/sealed envelope/accordian file - also - A124474-accordian file |
| Sep 9 2009 | Petition for review granted Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Sep 25 2009 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Gail Chesney 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 respondent's opening brief on the merits is filed. |
| Sep 30 2009 | Motion filed To defer briefing in light of S158852, Peo. v. Stevens. the People, respondent, Joan Killeen, Dep. A.G. |
| Oct 22 2009 | Order filed: case held pending decision in another case On September 30, 2009, respondent filed a motion seeking deferral of action in this matter pending resolution of a related issue in People v. Stevens (S158852). Upon due consideration, the motion is granted. Further action in this matter is deferred pending disposition of People v. Stevens (S158852). (Cal. Rules of Court, rule 8.512(d)(2).) Respondent's opening brief on appeal shall be filed no later than 20 days after this court's decision in People v. Stevens (S158852) is final. (See Cal. Rules of Court, rule 8.532(b).) |
| Dec 23 2009 | Note: Lead case (People v. Stevens) now final; opening brief now due on 1/12/2010. |
| Jan 7 2010 | Motion filed for transfer of cause to Court of Appeal with instruction to conduct furthe proceedings in light of the Court's decision in People v. Stevens. by Respondent, The People. Joan Killeen, counsel |
| Jan 8 2010 | Received: amended proof of service for motion for transfer which was filed 1/7/10. |
| Jan 12 2010 | Opposition filed Defendant and Appellant: Hernandez, Arturo JesusAttorney: Gail Chesney to motion for transfer of cause to Court of Appeal |
| Jan 21 2010 | Motion denied On January 7, 2010, respondent filed a motion seeking to transfer this cause to the Court of Appeal with instructions to conduct further proceedings in light of this court's decision in People v. Stevens (2009) 47 Cal.4th 625. (Cal. Rules of Court, rule 8.528(d).) Upon due consideration, the motion is denied. Respondent's alternative request for an extension of time to file the opening brief on appeal is granted. Respondent shall serve and file its opening brief within 30 days from the date of this order. |
| Feb 16 2010 | Request for extension of time filed Respondent requesting to March 22, 2010 to file opening brief on the merits (to court for permission) |
| Feb 22 2010 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 22, 2010. |
| Mar 15 2010 | Application filed Appellant's application for release on own recognizance (to court) |
| Mar 15 2010 | Exhibit(s) lodged in support of appellant's application for release on own recognizance |
| Mar 19 2010 | Opening brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Nanette Winaker |
| Apr 14 2010 | Order filed Appellant's application for release on his own recognizance, filed on March 15, 2010, is denied. George, C.J., was absent and did not participate. |
| Apr 14 2010 | Request for extension of time filed Appellant requesting to May 20, 2010 to file answer brief on the merits (to court for permission) |
| Apr 20 2010 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 20, 2010. |
| May 11 2010 | Request for extension of time filed Appellant Arturo J. Hernandez requesting to June 21, 2010, to file the answer brief on the merits (to court for permission) |
| May 14 2010 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 21, 2010. |
| Jun 18 2010 | Request for extension of time filed Appellant Arturo Jesus Hernandez request and extension of time to file answer brief on the merits (to court for permission) |
| Jun 23 2010 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 12, 2010. |
| Jul 12 2010 | Request for extension of time filed Gail Chesney counsel for appellant requesting to July 19, 2010, to file answer brief on the merits (to court for permission to file) ** Granted ** w/court for signature |
| Jul 14 2010 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 19, 2010. No further extensions will be granted. |
| Jul 21 2010 | Answer brief on the merits filed Defendant and Appellant: Hernandez, Arturo JesusAttorney: Gail Chesney CRC 8.25(b) |
| Jul 28 2010 | Request for judicial notice filed (Grant or AA case) Defendant and Appellant: Hernandez, Arturo JesusAttorney: Gail Chesney |
| Aug 5 2010 | Opposition filed Plaintiff and Respondent: The PeopleAttorney: Nanette Winaker By Nanette Winaker, AG staff for Respondent to request for Judicial Notice. |
| Aug 9 2010 | Request for extension of time filed By Attorneys for Respondent for an exention of 30 days to September 9, 2010 to file reply brief (to court for permission). |
| Aug 16 2010 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief is extended to and including September 9, 2010. |
| Aug 26 2010 | Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen |
| Jan 6 2011 | Case ordered on calendar to be argued Tuesday, February 8, 2011, at 1:30 p.m., in San Francisco |
| Jan 14 2011 | Request for judicial notice denied Upon due consideration, the request for judicial notice filed by defendant on July 28, 2010 is denied. (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) |
| Feb 8 2011 | Cause argued and submitted |
| Feb 25 2011 | Notice of forthcoming opinion posted To be filed on Monday, February 28, 2011 at 10 a.m. |
| Briefs | |
| Mar 19 2010 | Opening brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Nanette Winaker |
| Jul 21 2010 | Answer brief on the merits filed Defendant and Appellant: Hernandez, Arturo JesusAttorney: Gail Chesney |
| Aug 26 2010 | Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen |
| Brief Downloads | |
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| May 23, 2011 Annotated by Jasmeet Ahuja | FACTS: At trial, a courtroom deputy followed Hernandez to the witness stand and stood behind Hernandez as he testified. Defense counsel did not object at this point, concerned that doing so would highlight the issue for the jury. The next day, before Hernandez resumed his testimony, defense counsel protested to the stationing of the deputy behind Hernandez, arguing that the deputy’s presence was “highly prejudicial.” The court disagreed, insisting that the court was following courtroom protocol. PROCEDURAL HISTORY: ISSUE: HOLDING: ANALYSIS: While the trial court abused its discretion, such an error does not warrant a reversal of the conviction. A conviction should only be reversed if it is reasonably probable that the defendant would have obtained a more favorable result absent the error. People v. Watson 46 Cal.2d 818 (1956). https://scocal.stanford.edu/opinion/people-v-watson-24123 The court’s record does not suggest that the deputy’s demeanor was “anything other than respectful and appropriate.” On the contrary, despite Belarde’s testimony otherwise, the jury found Hernandez not guilty of assault with a deadly weapon. This fact, in conjunction with the fact that Hernandez testified to assaulting Belarde out of anger, not out of imminent danger, does not make it reasonably probable that Hernandez would have obtained a more favorable result without the deputy stationed at the witness stand. In addition, since the Court of Appeal found that the trial court erred in failing to give the appropriate instruction regarding the burden of proof for the “great bodily injury enhancement” but failed to determine whether the defendant was prejudiced by the error, on remand the Court of Appeal should decide whether reversal is required due to the instructional error. DISSENTING/CONCURRING OPINION: TAGS: |
