California Court of Appeal Jun 17, 2016 No. E062132Unpublished
Filed 6/17/16 P. v. Murphy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062132
v. (Super.Ct.No. FSB902633)
THOMAS JOSEPH MURPHY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs
and R. Glenn Yabuno, Judges. Affirmed with directions.
Ronald R. Boyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Judge Sachs terminated defendant’s in propria persona status and Judge Yabuna presided at the trial, sentencing, and the motion for new trial.
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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Thomas Joseph Murphy, guilty of
committing 14 felony offenses involving four victims, and cruelty to an animal, a dog,
based on a June 22, 2009, incident at the home of Andrew Lofton. The jury also
convicted defendant on three counts of dissuading witnesses to the crimes (Pen. Code,
§ 136.1, counts 14-16)1 based on his actions following the June 22, 2009, incident.
The jury found defendant committed the witness dissuasion counts for the benefit
of a criminal street gang, and the court found defendant had two prior strike convictions,
one prior serious felony conviction, and three prison priors. The court denied defendant’s
motion for a new trial, and sentenced him to an aggregate term of 73 years plus 175 years
to life in prison.
On this appeal, defendant raises multiple claims of error: (1) before the trial
commenced, the court abused its discretion and violated his federal constitutional rights
in revoking his right to represent himself under Faretta;2 (2) during trial, the court
improperly delegated to the bailiff the court’s authority to determine whether to handcuff
defendant and remove him from the courtroom; (3) during jury voir dire, the court
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Faretta v. California (1975) 422 U.S. 806 (Faretta).
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improperly diluted the reasonable doubt standard by equating witness credibility
determinations to everyday life decisions; (4) insufficient evidence supports his
convictions in counts 4 through 7 for assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4)); (5) the jury should have been instructed on the lesser
included offense of simple assault in counts 4 through 7; (6) insufficient evidence
supports the “primary activities” and “pattern of criminal gang activity” elements of the
gang enhancements on his witness dissuasion convictions in counts 14 through 16
(§ 186.22, subds. (e), (f)); and (7) the cumulative effect of these errors requires reversal.
We reject each of these claims.
Defendant further contends, and the People and we agree, that defendant’s 73
years plus 175-year-to-life sentence must be modified to strike the 10-year consecutive
terms imposed based on the gang enhancements in counts 14, 15, and 16. (§ 186.22,
subd. (b)(4).) The sentence must also be modified to impose a minimum parole
eligibility period of seven years on each of the 25-year-to-life terms on counts 14, 15, and
16. (§ 186.22, subd. (b)(4)(C).) We modify the judgment to correct this gang
enhancement sentencing error, but we affirm the judgment in all other respects.
II. FACTS AND PROCEDURAL HISTORY
A. Trial Evidence
1. The June 22, 2009, Incident
On June 22, 2009, Teresa Pelczynski drove to Lofton’s house in Crestline.
Defendant’s girlfriend, Kristin Westenhaver, had spent the previous night at the house and
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was there when Pelczynski arrived. Pelczynski left the house, went to the store, and returned
with vodka. Thereafter, her car alarm went off, and she went outside.
Pelczynski saw defendant, Westenhaver’s boyfriend, getting out of the backseat of her
car. Pelczynski asked defendant what he was doing in her car, then began walking back
towards the house. Defendant looked angry, told Pelczynski, “stay right there, bitch,” then
grabbed Pelczynski’s arm and escorted her into the house. Defendant began “ranting and
raving,” asking questions about where Westenhaver had been the night before.
After the group initially ignored him, defendant grabbed Westenhaver’s dog, took the
dog upstairs to a loft, tied the dog’s leash to a handrail, and threw the dog over the railing,
hanging the dog. After a minute or two, defendant began laughing, stated, “now I have your
attention,” and released the dog.
Defendant demanded that Lofton, Westenhaver, and Pelczynski sit on the couch
downstairs, and they complied. Defendant continued to ask questions and make accusations
about where Westenhaver was the night before. He began taking strips of duct tape and
sticking them to the wall or ceiling beam. He sprayed butane lighter fluid on Lofton,
Westenhaver, and Pelczynski as they sat on the couch, and he threatened to set them on fire
and kill them if they continued to lie. Pelczynski testified that defendant looked “all over the
house” for a lighter, but never found one. Lofton testified that defendant “eventually [found]
a lighter.”
At some point, Amber Guy arrived at the house. Though he had barricaded the front
door with speakers and furniture, defendant moved these items aside and let Guy into the
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house. Defendant told Guy to sit on the couch with the others. When Guy refused to
comply, defendant, while holding a knife, sprayed Guy with lighter fluid, said he was going
to light her on fire, and hit her in the face twice. Guy sat down near the others.
When Pelczynski tried to get up from the couch, defendant struck her leg with the
claw end of a hammer, hurting her badly and causing her leg to bleed. Pelczynski received
stitches for the injury. Defendant’s nickname was “Corporal.” He was called “Corporal”
because if anyone got in his way, he used corporal punishment.
At some point, defendant ordered Westenhaver to go upstairs and have sex with him.
He also ordered Pelczynski to come upstairs, and she complied, but came back downstairs
while defendant and Westenhaver were having sex. In an attempt to calm defendant, Lofton
left the house to get methamphetamine and returned around two hours later.
While defendant was still upstairs with Westenhaver, Guy and Pelczynski moved the
barricades away from the front door, went outside, and Guy drove away in her car.
Pelczynski went back inside the house as Guy was leaving because defendant came outside
and told her to come back inside the house.
Guy later returned to the house with Pelczynski’s boyfriend. Guy, Pelczynski, and
Pelczynski’s boyfriend then drove to a friend’s house. The police arrived at the friend’s
house, and suggested that Pelczynski go to the hospital. When the police arrived at Lofton’s
house, defendant and Westenhaver were not there; they had gone to defendant’s sister’s
basement, where they hid from the police. The entire incident at Lofton’s house lasted
around eight hours.
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2. Evidence of Witness Intimidation
Richard Neria testified that defendant asked that he get Pelczynski, Westenhaver,
Lofton, and Guy to change their statements to police. On one occasion, when Neria was with
Guy, defendant called Neria, and Neria handed the telephone to Guy. Defendant would call
Neria, asking that Neria contact Pelczynski, Westenhaver, Lofton, and Guy in three-way
telephone calls.3
Similarly, in August 2009, Robert Stewart, aka “Rooster,” began receiving telephone
calls from defendant. Defendant asked Stewart for his help regarding victims and witnesses
who were going to be testifying against him. Stewart agreed to help because defendant “was
a comrade, a fellow skinhead.”4
Defendant and Stewart spoke to Westenhaver about changing her statement to the
police. Defendant wanted Westenhaver to say that Pelczynski was hit with a hammer during
rough sex, which was untrue. Defendant also asked Westenhaver to get in touch with
Pelczynski about changing her statement. Following the preliminary hearing, Stewart
received a threatening letter from defendant.
3 Neria was charged with attempting to dissuade a witness for the benefit of a criminal street gang, and entered into a plea agreement in exchange for his truthful testimony at trial.
4 Stewart was also charged with attempting to dissuade witnesses for the benefit of a criminal gang, and entered a plea agreement in exchange for his truthful testimony at trial.
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At some point after the June 22, 2009, incident, Pelczynski was contacted by someone
who told her to “change [her] testimony completely” and state that she was in a threesome
and “was having sex willingly and got hit in the leg with a hammer.” Defendant also spoke
to Guy following the incident and told Guy he did not want her to testify.
Deputy Sheriff Rocky Johnson testified that, during defendant’s preliminary hearing
on April 8, 2010, defendant, with his fists clenched, aggressively leaned up on counsel table
and began mouthing something towards Westenhaver, who was testifying. After this
incident, Westenhaver felt threatened and was nervous and concerned. She did not want
to continue with her testimony.
3. Gang Evidence
On March 7, 2009, defendant told a deputy at the West Valley Detention Center
that he was a member of the Aryan Nation gang. Similarly, on June 24, 2009, defendant
told a classification officer at the jail that he was an active member of the Aryan Nation
gang, with a moniker of “Corporal.”
The prosecution called Deputy Probation Officer Lowell Smith, who testified as a
gang expert. The details of Officer Smith’s testimony are described below, in connection
with our discussion of defendant’s claim that insufficient evidence supports the gang
enhancements on his witness dissuasion convictions in counts 14, 15, and 16.
B. Verdicts and Sentencing
The jury found defendant guilty as charged of false imprisonment by violence, in
counts 1 through 3, of Pelczynski, Guy, and Westenhaver (§ 236); assault by means of
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force likely to produce great bodily injury, in counts 4 through 7, against Pelczynski,
Guy, Lofton, and Westenhaver (§ 245, subd. (a)(4)); assault with a deadly weapon, in
count 8, against Pelczynski (§ 245, subd. (a)(1)); battery, in count 9, of Guy (§ 242);
criminal threats, in counts 10 through 13, of Pelczynski, Guy, Lofton, and Westenhaver
(§ 422); dissuading a witness, in counts 14 through 16, namely, Guy, Lofton, and
Westenhaver, (§ 136.1); and cruelty to an animal in count 17 (§ 597, subd. (a)). As
indicated, the jury also found gang enhancement allegations true on the witness
dissuasion convictions in counts 14 through 16. Defendant’s motion for a new trial was
denied, and he was sentenced to 73 years plus 175 years to life in prison.
III. DISCUSSION
A. The Trial Court Properly Revoked Defendant’s in Propria Persona Status Before
Trial, Based on His Attempt to Intimidate Prosecution Witnesses
1. Relevant Background
Defendant’s motion to represent himself was granted on October 30, 2009, before
the preliminary hearing and after defendant signed a Faretta waiver form. On April 30,
2010, after the information was filed, defendant signed a second Faretta waiver and the
court signed a second Faretta order, again allowing defendant to represent himself in
propria persona (pro. per.).
On February 25, 2011, the prosecution orally moved to terminate defendant’s pro.
per. status. The court set a March 4 hearing on the motion, and advised defendant to be
prepared to address the prosecutor’s concerns, which included, as the prosecutor
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described it, defendant’s “us[e] [of] his pro per status to recruit subjects to take out”
prosecution witnesses. At the March 4 hearing, the prosecution told the court that its
“specific concern” was that defendant was “continu[ing] to try to intimidate” prosecution
witnesses by “laying [them] out . . . as snitches” to fellow gang members.
The prosecution adduced two letters written by defendant, from the West Valley
Detention Center, each marked “legal mail” and addressed to the same post office box in
Crestline. The first letter, dated December 16, 2010, was addressed to the “Law Offices
Of: [¶] Youngblood & Associates [¶] Mr. Youngblood, J.D.” The second letter, dated
December 20, 2010, was addressed to “Law Office Of Mr. Kata Jedenne.” Defendant
admitted he sent both letters and that they were intended to be addressed to a lawyer
named “Kenneth Jedenne Youngblood.” The court noted that the California State Bar did
not list any attorney by the name of “Kata Jedenne,” and did not list an attorney by the
name of “Youngblood” practicing law in the Crestline area.
The December 16 letter asked its recipient to “contact” “Mr. Ferguson of High
Wire Investigations,” concerning defendant’s case, and also asked its recipient to send
defendant a care package consisting of 18 food and toiletry items, along with “stamps and
stickers.” The court said: “This has no relationship at all to your case, and for you to
suggest to the Court that you sent this letter to this individual as a work product for this
particular case is just not believable.”
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The court was “specifically” and “very concerned” with the December 20 letter
and the tone of the letter. This letter referred to the four alleged victims in the case: “1)
Andy Lofton; 2) Amber Guy; 3) Kristin Westenhaver; and, 4) Terresa Pelczynski” and
discussed their credibility and anticipated testimony. The letter also stated: “[I]f you
want to get me un-read mail, use a fake law firm name, and a fake attorneys name. Even
a fake address. I’ll get it.”
The December 20 letter also asked its recipient to place two classified
advertisements in the Alpenhorn, a newspaper in the Crestline area where the charged
crimes occurred and witnesses to the crimes were located. The first ad was to read:
“Terresa P. I’m proud of you. Keep the wind at your back. Send me a message if I can
help. Corporal.” The second ad was to be placed in the “Help Wanted” section and was
to read: “Confidential Informants wanted. No experience needed. Will train you to
testify. For info. and details contact Kristin Flowers or Ricky Neria at: 333-RATS, or
333-0600 or Kristin F. Your cover is blown. Come in. The D.A.” The December 20
letter continued: “I . . . would like to open the paper . . . and read those ads. And I’m
sure it wouldn’t exactly hurt matters for 100’s of others to read it.”
When questioned by the court, defendant admitted he sought to place the ads in
the Alpenhorn and that one of his purposes for doing so was “to let everybody else know
if they’ll lie on me, they’ll lie on you.” In other words, defendant admitted he wanted to
let people in the Crestline area know that Kristin Flowers and Ricky Neria, who had been
identified as potential witnesses against him in the case, were “rats.” The trial court
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denied defendant’s request to continue the hearing and his request to call an unidentified
witness, noting that: “I don’t think we need a witness. You admitted that the reason why
you sent that letter with those classified ads is to let everybody know that these two
people are rats. These two people are identified as potential witnesses in your case.
That’s enough.” The court also said: “[F]or someone to suggest that this is not witness
intimidation would be a ridiculous position to take.”
Lastly, based on a transcript of a recorded telephone call defendant made from jail,
which was provided to defendant before the March 4 hearing, the court noted: “It
appears to the Court that the defendant would contact one . . . individual on the phone,
and then the defendant would ask that individual to contact and forward his phone call to
another individual in a series of forwarded phone calls. Again, in [an] attempt . . . to be
circumventing the pro per procedures at the San Bernardino County Sheriff’s
Department.” After acknowledging its duty to consider alternative sanctions to
terminating defendant’s pro. per. status, the court said: “This Court would find that
there’s no other sanction feasible. This Court cannot devise any sanction that would limit
this particular [defendant’s] ability to contact anyone for anyone to convey the message
that [defendant] would like to be conveyed—that is the intimidation and letting the world
know, in his term[s], that these individual[s] are rats and can’t be trusted. These
individuals again are identified as witnesses in his case in chief.” The court then
terminated defendant’s pro. per. status based on his “intimidation of . . . prosecution
witnesses in the case.”
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2. Applicable Law and Analysis
Though criminal defendants have a Sixth and Fourteenth Amendment right to
represent themselves (Faretta, supra, 422 U.S. at pp. 807, 821; People v. Doss (2014)
230 Cal.App.4th 46, 54 (Doss)), there are limits on the right to act as one’s own attorney.
(People v. Butler (2009) 47 Cal.4th 814, 825.) “Revoking a defendant’s in propria
persona status is justified when the defendant has ‘“deliberately engage[d] in serious and
obstructionist misconduct,’” occurring either inside or outside the courtroom [citation],
that ‘seriously threatens the core integrity of the trial.’” (Doss, supra, at p. 55.)
The erroneous termination or revocation of a defendant’s pro. per. status is
reversible per se. (People v. Butler, supra, 47 Cal.4th at p. 824.) But “[t]he trial court
possesses much discretion when it comes to terminating a defendant’s right to self-
representation and the exercise of that discretion ‘will not be disturbed in the absence of a
strong showing of clear abuse.’ [Citations.]” (People v. Welch (1999) 20 Cal.4th 701,
735.) The “trial court must undertake the task of deciding whether a defendant is and
will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his
or her actions or words as to preclude the exercise of the right to self-representation.”
(Ibid.) “[O]ne reason for according deference to the trial court is that it is in the best
position to judge defendant’s demeanor.” (Ibid.)
As explained in People v. Carson (2005) 35 Cal.4th 1, 9 (Carson): “One form of
serious and obstructionist misconduct is witness intimidation, which by its very nature
compromises the factfinding process and constitutes a quintessential ‘subversion of the
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core concept of a trial.’ [Citation.] ‘A defendant acting as his own attorney has no
greater privileges than any member of the bar. He may not disrupt proceedings or
intimidate witnesses. [Citations.] . . . The trial court can stop harassment and abuse of a
witness by a threatening defendant and can terminate self-representation by a defendant
who engages in serious misconduct. [Citations.]’ [Citation.] Threatening or intimidating
acts are not limited to the courtroom. [Citation.] When a defendant exploits or
manipulates his in propria persona status to engage in such acts, wherever they may
occur, the trial court does not abuse its discretion in determining he has forfeited the
right of continued self-representation.” (Italics added.)
Here, the trial court plainly did not abuse its discretion in terminating or revoking
defendant’s pro. per. status, given that defendant admitted he used his pro. per. privileges
to send mail, falsely labeled “legal mail” and addressed to a “fake” attorney in the
Crestline area, to solicit the recipient to intimidate two prosecution witnesses by placing
an ad in a local newspaper identifying the witnesses as “rats” or “snitches.” If successful,
the intimidation of these witnesses by dissuading them from testifying or from testifying
truthfully to any extent, would have directly undermined the factfinding process and “the
core integrity” of the trial. (Carson, supra, 35 Cal.4th at p. 9; see Doss, supra, 230
Cal.App.4th at p. 55.)5
5 It was unnecessary to show that defendant actually succeeded in dissuading any witness from testifying. The likely, not the actual, effect of defendant’s misconduct was the primary factor the court had to consider, and did consider, in determining whether to terminate his pro. per. status. (Carson, supra, 35 Cal.4th at p. 10.)
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Defendant maintains that “alternative sanctions” to terminating or revoking his
pro. per. status were available and should have been imposed. To be sure, courts are
required to consider “the availability and suitability of alternative sanctions” in
determining whether to terminate the defendant’s right of self-representation. (Carson,
supra, 35 Cal.4th at p. 10.) “Misconduct that is more removed from the trial proceedings,
more subject to rectification or correction, or otherwise less likely to affect the fairness of
the trial may not justify complete withdraw [or denial] of the defendant’s right of self-
representation. [Citations.] The court should also consider whether the defendant has
been warned that particular misconduct will result in termination of in propria persona
status.” (Ibid.) Defendant specifically argues that “there [were] alternative sanctions for
[his] misconduct of sending letters marked ‘legal mail’ to persons who are not attorneys.
The trial court was able to determine with a simple search on the [W]eb site of the
California State Bar that the addressee of [his] letters was not a lawyer. . . . It would not
be unduly burdensome, with respect to any letters that [defendant] has marked ‘legal
mail’ for the Sheriff to screen the outgoing mail of [defendant] in the same way.” We
disagree.
The court expressly considered limiting or monitoring defendant’s pro. per.
privileges, including his use of the telephones and the mail, but reasonably determined
there were no feasible means of preventing him from using his pro. per. status to engage
in witness intimidation. Ostensibly, the court, after reviewing the evidence and
defendant’s demeanor during the March 4 hearing, reasonably concluded that defendant
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could not be trusted to follow the court’s directives or the rules of the sheriff’s
department. The court pointed out that defendant had already used the telephones to call
one individual, who then called another who connected defendant to that person. (The
court did not say whom defendant had contacted or spoken with in this call.) Thus, it
appears that, short of terminating his pro. per. status, defendant could not be trusted not to
use the telephones and the mail to attempt to intimidate prosecution witnesses and
undermine the core integrity of the trial.
Defendant’s reliance on Doss, supra, 230 Cal.App.4th 46, is misplaced. In Doss,
the trial court applied an incorrect standard in revoking the defendant’s pro. per. status,
because (1) the court evaluated the defendant’s misconduct in jail under Wilson v.
Superior Court (1978) 21 Cal.3d 816, which allows a defendant’s pro. per. privileges, as
opposed to pro. per. status, to be revoked based on the defendant’s out-of-court
misconduct “without regard to the misconduct’s effect on the court proceedings,” and (2)
the court failed to consider the availability and suitability of alternative sanctions to
revoking the defendant’s pro. per. status. (Doss, supra, at p. 57.) As a result of its
reliance on Wilson, the trial court in Doss did not determine whether, under the standard
for revoking a defendant’s pro. per. status, the defendant’s misconduct amounted to
“‘serious and obstructionist misconduct’” (People v. Butler, supra, 47 Cal.4th at p. 825)
that “seriously threaten[ed] the core integrity of the trial” (Carson, supra, 35 Cal.4th at p.
11). The Doss court thus remanded the matter to the trial court to determine whether the
defendant’s pro. per. status was revocable under the proper standard. (Doss, supra, at pp.
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57-58.) The Doss court recognized that the defendant’s intimidation of a witness may
have justified revoking his pro. per. status. (Id. at pp. 56-57.) But the trial court here,
unlike the trial court in Doss, relied on the proper legal standard in denying defendant’s
Faretta motion. The trial court here also considered the feasibility of imposing
alternative sanctions, including limiting or monitoring defendant’s telephone calls and
mail, but reasonably found them insufficient.
Lastly, defendant argues that the court abused its discretion in relying upon several
improper factors in revoking his pro. per. status—factors which did not seriously threaten
the core integrity of the trial and which were subject to rectification or correction
(Carson, supra, 35 Cal.4th at p. 10), namely, his several and ongoing abuses of his pro.
per. jail privileges. This argument is based on the comments at the outset of the March 4
hearing, where the court expressed concern that defendant had been abusing his pro. per.
jail privileges in violation of court orders and the jail’s rules and procedures governing
pro. per. inmates. The court pointed to several examples of defendant’s abuse: (1) by his
December 16 letter, defendant requested the care package of food and other items, the
letter was falsely labeled “legal mail,” and the care package request had no relationship
“at all” to defendant’s case; (2) defendant asked the recipient of the letter to (falsely)
mark all letters to defendant as “legal mail” so the letters would not be opened and
reviewed by jail staff; (3) the recipient was apparently a defense witness, the letter
revealed information about the case to the witness, and asked the witness to “assist”
defendant with the information and discuss it with defendant’s investigator; and (4) in
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calls from the jail, defendant had recipients of the calls forward the calls several times, in
an apparent effort to disguise the ultimate recipients of the calls. The entire point of the
court’s references to defendant’s abuses of his pro. per. jail privileges was that defendant
had been abusing the privileges to circumvent court orders and jail rules and procedures,
intimidate witnesses, and undermine the core integrity of the trial. Defendant’s attempt
to parse the court’s comments into separate and insufficient reasons, or improper factors,
for terminating his pro. per. status is an inaccurate reading of the record.
B. The Handcuffing and Temporary Removal of Defendant from the Courtroom Was
Supported by a Manifest Need to Maintain Courtroom Security
Defendant claims the trial court abused its discretion in delegating to the bailiff
and the sheriff’s department the court’s authority and duty to decide whether to handcuff
defendant, in the presence of the jury, and remove him from the courtroom following his
outburst during the prosecution’s direct examination of Guy. As we explain, the
handcuffing and temporary removal of defendant from the courtroom was proper,
because it was supported by a manifest need to maintain courtroom security, and any
error was harmless beyond a reasonable doubt.
1. Relevant Background
While Guy was testifying, defendant interjected: “You should stop lying. [¶] . . .
[¶] . . . That’s what you should do.” When the trial court admonished defendant to
“restrain your outbursts, sir,” defendant responded, “Look man, let her talk. If I have
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something to say, I am going to fucking say it. She’s fucking lying. We have a parade of
people up here lying.” (Italics added.)
At that point, defendant began to stand up.6 Defendant scooted his stationary
chair back four to six inches, and raised himself up four to six inches, before the bailiff
put his hand on defendant’s shoulder and defendant sat back down. The bailiff quietly
told defendant not to stand, to lower his voice, and not to curse. In response, defendant
told the bailiff he was going to “say what [he] want[ed] to say.” The jury heard
defendant say: “I will talk to who fucking I want to talk to.” (Italics added.)
The court then said: “[Defendant], do you want to continue, or would you like to
be removed from the courtroom?” Defendant responded: “Judge, I am tired of seeing
people go up there and lie, one after the next. I gave him [defense counsel] a list of
questions to prove it, and he’s not asking them.” The witness (Guy) interjected: “So
everyone is lying but you? I am just saying.” After the court admonished Guy not to
speak out of turn by saying, “Ma’am,” the bailiff handcuffed defendant, and he and
another deputy escorted defendant from the courtroom. Guy began to cry. Defendant did
not resist being handcuffed or taken out of the courtroom. According to the bailiff, the
handcuffs were used for the safety of the jury and courtroom staff.
6 At the hearing on defendant’s motion for a new trial, the bailiff testified to what he said to defendant and what defendant said to him, when he put his hand on defendant’s shoulder following defendant’s outburst.
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Outside the presence of the jury, and after the prosecutor had concluded her direct
examination of Guy, defendant was returned to the courtroom. The following colloquy
occurred:
“[THE COURT:] [Defendant], I understand that you may be getting frustrated
and having difficulty listening to some of the testimony. However, the outbursts cannot
be tolerated and won’t be tolerated.
“THE DEFENDANT: I understand, Judge.
“THE COURT: Are you able to restrain yourself and prevent any further
outbursts?
“THE DEFENDANT: I will, Judge.
“THE COURT: Do you understand that any further outbursts will result in your
immediate removal from the courtroom and the trial will continue without you?
“THE DEFENDANT: I understand that, Judge.
“THE COURT: All right. [¶] Are you going to be able to contain yourself
without the shackles on, [defendant]?
“THE DEFENDANT: Yeah.
“THE COURT: All right. At this point I will order that [defendant] be
unshackled.”
“[DEFENSE COUNSEL]: Thank you.
“THE DEFENDANT: You know, though, Judge, I think the cat may already be
out of the bag on that one. [¶] You know what I mean?
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“THE COURT: We have to play by the book.”
After the jury returned its verdicts, defendant filed a motion for a new trial,
claiming he was denied due process by the “unjustified removal of his person from the
courtroom, after he had been placed in handcuffs in the presence of, in front of, and in
view of the jury.”
After hearing argument from both parties, the trial court denied defendant’s
motion for a new trial, stating: “What remains to be addressed is the issue of
[defendant’s] removal from the courtroom during the testimony of Amber Guy, and
whether the Court committed error in allowing that to occur. I know that there were
many cases cited by [defense counsel], Deck [v. Missouri (2005) 544 U.S. 622] and
[People v.] Hill [(1998) 17 Cal.4th 800] being two of them. However, the Court believes
that there is a distinct difference, that those cases involve shackling during the course of
the trial, defendants being confined while in trial rather than some instance of
handcuffing or shackling as referred to by [defense counsel] during the course of the trial
based on conduct caused by [defendant].”
Addressing defendant’s claim that his verbal outbursts and standing up from his
chair were insufficient to justify his removal from the courtroom, the court noted that
defense counsel was arguing that the handcuffing and removal of defendant from the
courtroom, “which the Court did not specifically direct,” so prejudiced defendant in the
eyes of the jury that it could not be viewed as harmless error.
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The court rejected this claim, noting that: “The conduct exhibited by [defendant],
as testified to by [the bailiff], did cause the witness [Amber Guy] to be in fear.
[Defendant] was given an opportunity to calm down and refrain from making further
comments. Following that he continued to make comments and attempted to stand up,
that resulted in his being . . . handcuffed and being removed from the courtroom. This
Court does not believe it is necessary for a further threat to be allowed to take place in
order for the security of the courtroom to be maintained. The security of the courtroom is
an obligation delegated to the sheriff’s department. Whether or not the Court specifically
directed [defendant] to be handcuffed and removed, this [in] my opinion, is not a central
issue. The central issue was, was it the conduct of [defendant] that caused his removal
from the courtroom? And my belief is that it is and it was.” (Italics added.) Lastly, the
court observed that Guy was subject to recall but was never recalled, and defendant’s
removal during the balance of her direct examination did not support a mistrial and a new
trial.
2. Analysis
The due process clauses of the Fifth and Fourteenth Amendments prohibit a
criminal defendant from being physically restrained, in a manner visible to the jury,
absent the trial court’s determination that the restraints are justified by a state interest
specific to the defendant on trial, including the maintenance of courtroom security.
(Deck v. Missouri (2005) 544 U.S. 622, 628-629; People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 389.)
21
California law similarly prohibits a defendant from being subjected to physical
restraints of any kind in the courtroom, in the presence of the jury, absent a showing of a
“manifest need” for the restraints. (People v. Hill (1998) 17 Cal.4th 800, 841; People v.
Duran (1976) 16 Cal.3d 282, 290-291; § 688 [“No person charged with a public offense
may be subjected, before conviction, to any more restraint than is necessary for his
detention to answer the charge.”].) “‘Manifest need’ arises only upon a showing of
unruliness . . . or ‘[e]vidence of any nonconforming conduct or planned nonconforming
conduct which disrupts or would disrupt the judicial process if unrestrained . . . .’”
(People v. Cox (1991) 53 Cal.3d 618, 651.) The conduct that supports a showing of a
manifest need must appear as a matter of record. (People v. Vance (2006) 141
Cal.App.4th 1104, 1112.) And, “in any case where physical restraints are used those
restraints should be as unobtrusive as possible, although as effective as necessary under
the circumstances.” (People v. Duran, supra, at p. 291, fn. omitted.)
Under both the federal Constitution and California law, it is the trial court, not law
enforcement or security personnel, that must determine whether to physically restrain the
defendant in the presence of the jury, and the court abuses its discretion “if it abdicates
this decision-making responsibility to security personnel or law enforcement.” (People v.
Hill, supra, 17 Cal.4th at p. 841, citing People v. Jackson (1993) 14 Cal.App.4th 1818,
1825; Deck v. Missouri, supra, 544 U.S. at p. 629.) Here, the bailiff, not the trial court,
made the decision to remove defendant temporarily from the courtroom and handcuff him
as he was being removed. At the hearing on defendant’s new trial motion, the bailiff
22
testified he understood that it was his “call” to handcuff defendant and remove him.
According to the bailiff, the judge had “left it up to [him] to make that decision.” The
court confirmed the bailiff’s understanding when, in denying the new trial motion, the
court observed that maintaining courtroom security was “an obligation delegated to the
sheriff’s department.”
But as the People point out, the cases defendant relies upon, including, for
example, People v. Hill, supra, 17 Cal.4th at page 841, involved the improper delegation
by the trial court, to the sheriff’s department, of the court’s duty to determine whether to
shackle a defendant during the entire trial. By contrast, this case involves “the decision
to handcuff [defendant] and remove him from the courtroom was based on exigent
circumstances perceived by the [bailiff] who was concerned with the safety of those in
the courtroom.” We agree this is an important distinction.
As the People point out: “It would be unreasonable, and outside the scope of the
authorit[ies] [defendant] relies on, to require that the [bailiff] call a timeout in the midst
of a volatile situation and seek the trial court’s permission to shackle the defendant who
is disrupting the courtroom proceedings. The case law explaining that a trial court abuses
its discretion if it abdicates [its] decisionmaking responsibility regarding shackling of a
defendant to security personnel does not address an emergent situation where courtroom
security [personnel are] required to make quick decisions based upon the safety of
others.”
23
In any event, the handcuffing or shackling, and temporary removal of defendant
from the courtroom, were amply supported by a manifest need to maintain the security of
the jury, the court staff, and the other people in the courtroom. (People v. Hill, supra, 17
Cal.4th at p. 841; cf. People v. Soukomlane (2008) 162 Cal.App.4th 214, 229-230.) It is
also clear from the trial court’s comments in denying defendant’s motion for a new trial
that the court would have promptly—and justifiably—ordered defendant handcuffed and
removed from the courtroom had the bailiff not promptly taken the initiative to do so.
Indeed, based on his verbally and physically aggressive and threatening outburst
during the direct examination of Guy, defendant was a manifest security threat. He
pushed his chair back and tried to stand up when he said to the court: “Look, man, let her
[Guy] talk. If I have something to say, I am going to fucking say it. She’s fucking
lying.” Then, after the bailiff placed his hand on defendant’s shoulder, told him not to
stand up, to lower his voice, and not to swear, and after the trial court warned defendant
that he would be removed from the courtroom if he did not restrain himself, defendant
openly defied the court by saying: “I will talk to who fucking I want to talk to.” Given
defendant’s defiance of the bailiff’s and the trial court’s authority, defendant manifestly
needed to be handcuffed and removed from the courtroom so that the security of the
courtroom could be maintained.
Defendant emphasizes that he tried to stand up only once and he did not attempt to
stand up again after the bailiff put his hand on his shoulder. But defendant’s single
attempt to stand up as he openly defied and swore at the trial court was a sufficient
24
showing of a manifest need to maintain court security by handcuffing defendant and
temporarily removing him from the courtroom. As the trial court recognized, there was
no need to increase the security threat by giving defendant a chance to become even more
verbally and physically aggressive and threatening before he was handcuffed and
removed.
3. Any Error Was Harmless Beyond a Reasonable Doubt
Further, any error in handcuffing and temporarily removing defendant from the
courtroom was harmless beyond a reasonable doubt. “Under the federal Constitution,
where a court ordered a defendant, without adequate justification, to wear restraints that
were seen by the jury, the state must prove beyond a reasonable doubt that the unjustified
shackling did not contribute to the verdict.” (People v. Ervine (2009) 47 Cal.4th 745,
773; Deck v. Missouri, supra, 544 U.S. at p. 635.) A jury’s brief observations of a
defendant’s physical restraints have generally been found nonprejudicial. (People v.
Cleveland (2004) 32 Cal.4th 704, 740; People v. Tuilaepa (1992) 4 Cal.4th 569, 584
[“Prejudicial error does not occur simply because the defendant ‘was seen in shackles for
only a brief period either inside or outside the courtroom by one or more jurors . . . .’”].)
Defendant’s handcuffing was brief; it occurred only when he was being escorted out of
the courtroom. He was also promptly returned to the courtroom, before his defense
counsel began to cross-examine Guy, and he remained unhandcuffed and otherwise
unshackled during the rest of the trial.
25
The jury was also given CALCRIM No. 337, which instructed it to “completely
disregard” the fact that defendant had been restrained. It stated: “During a period of time
the Defendant was physically restrained. Do not speculate about the reason. You must
completely disregard this circumstance in deciding the issues in this case. Do not
consider it for any purpose or discuss it during your deliberations.” We presume that the
jury followed the court’s instructions. (People v. Cruz (2001) 93 Cal.App.4th 69, 74.)
Given the brevity of the handcuffing and removal incident, and the unequivocal jury
instruction to completely disregard it, the handcuffing and removal incident could not
have affected the jury’s verdicts or findings.
C. It Is Not Reasonably Likely That the Jury Misconstrued the Trial Court’s Voir Dire
Remarks—Equating the Jury’s Witness Credibility Determinations With Everyday Life
Decisions—as Diminishing the Prosecution’s Burden to Prove the Facts Essential to the
Convictions Beyond a Reasonable Doubt
Defendant claims that, during jury voir dire, the trial court equated the credibility
determinations that the jurors would be required to make with the decisions of everyday
life, thereby diminishing the prosecution’s burden to prove beyond a reasonable doubt
each fact essential to the convictions, in violation of his constitutional rights. We
conclude there is no reasonable likelihood that the jury misconstrued the trial court’s
comments to diminish the proof-beyond-a reasonable doubt standard.
26
1. Relevant Background
During jury voir dire, the trial court explained that the jurors would have to
determine the credibility of witnesses based upon their background and experiences, and
to illustrate the point, engaged in the following colloquy with the prospective juror in seat
No. 9:
“[THE COURT:] We’re going to be hearing from a number of witnesses as
you’ve heard. And it is up to you as jurors to decide the relative credibility of each one
of those witnesses based on your own background and experiences. . . . Juror number
nine, you indicated that you have a couple of kids, right?
“JUROR IN SEAT 9: Yes.
“THE COURT: During the course of [your kids] growing up I’m sure they had
disagreements, and you were called upon to decide who you believe and who you didn’t,
correct?
“JUROR IN SEAT 9: Yes.
“THE COURT: How did you do that?
“JUROR IN SEAT 9: Want to find out what the dispute is all about first, what
they are fighting for or what is the reason why they’re fighting.
“THE COURT: So you do some fact finding. And then what factors would you
generally consider when you’re talking to them as you’re evaluating their credibility?
“JUROR IN SEAT 9: I guess basically want to know where it happened first
’cause my kids fought a lot when they were teenagers. So I can relate to that. And if
27
they said it happened here in the house, that’s when I really get angry. I don’t like it to be
happening in the house.
“THE COURT: Were you able to make a decision as to which one you believed?
“JUROR IN SEAT 9: Yes.
“THE COURT: Make a decision who was more credible?
“JUROR IN SEAT 9: Yes. Based on I would call his friend and her friend, and is
it true they fought in the parking lot in school, if that’s where it was.
“THE COURT: Did you also judge it somewhat on how they answered questions
that you posed to them?
“JUROR IN SEAT 9: Yeah.
“THE COURT: Body language? Demeanor?
“JUROR IN SEAT 9: Yes.
“THE COURT: Eye contact?
“JUROR IN SEAT 9: Right.
“THE COURT: What they stood to gain and lose, all those factors?
“JUROR IN SEAT 9: Yes.
“THE COURT: And we’ve all been called upon to judge the credibility and
believability of family members, children, friends, co-workers. [¶] Anybody believe
they’ll have any difficulty weighing and evaluating the witnesses’ testimony as you have
in the past with other people? Anybody think they’ll have any difficulty?”
28
2. Analysis
“The reasonable-doubt standard plays a vital role in the American scheme of
criminal procedure. It is a prime instrument for reducing the risk of convictions resting
on factual error. The standard provides concrete substance for the presumption of
innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies
at the foundation of the administration of our criminal law.’” (In re Winship (1970) 397
U.S. 358, 363.) Accordingly, the due process clause of the Fourteenth Amendment
“protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he [or she] is charged.” (Id. at p.
364; see also People v. Watson (1956) 46 Cal.2d 818, 831 [“[T]he doctrine of reasonable
doubt [applies] . . . to proof of ‘each fact which is essential to complete a chain of
circumstances that will establish the defendant’s guilt.’”].)
The People argue that defendant forfeited his right to appellate review of the trial
court’s comments during jury voir dire, because he did not object in the trial court that
the comments diminished the prosecution’s burden to prove beyond a reasonable doubt
the facts underlying the charged enhancements. “[E]ven in the absence of an objection
the accused has a right to appellate review of any instruction that affects his or her
substantial rights.” (People v. Johnson (2004) 119 Cal.App.4th 976, 984; § 1259.) And
here, the question of whether the trial court’s comments diminished the standard of proof
beyond a reasonable doubt affected defendant’s substantial, due process right to
conviction upon proof beyond a reasonable doubt. (People v. Johnson, supra, at p. 984.)
29
Additionally, an appellate court may consider important questions of constitutional law,
even if the defendant fails to raise the issue below. (Id. at pp. 984-985.) Thus, we reject
the People’s forfeiture argument and address defendant’s claim.
To be sure, it is error to suggest to jurors that the reasonable doubt standard is the
same standard the jurors employ in their everyday life decisions undermines or
diminishes the reasonable doubt standard. (People v. Nguyen (1995) 40 Cal.App.4th 28,
35-36 [trial court “trivialized” reasonable doubt standard by equating it to the same
standard people use in determining whether to change lanes while driving, or to marry];
People v. Johnson (2004) 115 Cal.App.4th 1169, 1171-1172 [error to liken reasonable
doubt standard to decision to board airplanes and plan vacations].)
As our state Supreme Court long ago observed: “The judgment of a reasonable
man in the ordinary affairs of life, however important, is influenced and controlled by the
preponderance of evidence. Juries are permitted and instructed to apply the same rule to
the determination of civil actions involving rights of property only. But in the decision of
a criminal case involving life or liberty, something further is required. . . . There must be
in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the
Section 186.22, subdivision (b)(1)(C), which the trial court applied here, requires
the court to impose a 10-year term on any felony that is a violent felony as defined in
subdivision (c) of section 677.5, which includes any felony punishable by life
imprisonment. Defendant’s witness dissuasion convictions in counts 14, 15, and 16 were
felonies punishable by 25 years to life in prison, under the “Three Strikes” law. (§ 667,
subds. (b)-(i).) But the consecutive 10-year terms imposed on counts 14, 15, and 16,
pursuant to subdivision (b)(1)(C), were improperly imposed because the alternative
punishment provided in subdivision (b)(4)(C) applied in lieu of the 10-year terms called
for by subdivision (b)(1)(C). Subdivision (b)(4)(C) of section 186.22 provides that any
person convicted of a felony for the benefit of a criminal street gang shall “be sentenced
to an indeterminate term of life imprisonment,” with a minimum parole eligibility period
of seven years, if the felony is “threats to victims and witnesses, as defined in Section
136.1.”
As one court has explained: “For most felonies punishable by a determinate term,
the sentence will be enhanced by a term of years under section 186.22, subdivision (b)(1).
But when the defendant has been convicted of a felony that already carries a life
sentence, there is no specific enhancement for a term of years.” (People v. Johnson
(2003) 109 Cal.App.4th 1230, 1237.) And if, as here, the felony that already carries a life
sentence is witness dissuasion in violation of section 136.1, the defendant must serve at
least seven years of the life term before being considered for parole. (§ 186.22, subd.
(b)(4)(C); see People v. Sengpadychith, supra, 26 Cal.4th at p. 327.)
50
IV. DISPOSITION
The three 10-year determinate terms imposed consecutive to the 25-year-to-life
terms on defendant’s witness dissuasion convictions in counts 14, 15, and 16 are stricken.
Instead, defendant is ordered to serve at least seven years of each 25-year-to-life term
imposed on counts 14, 15, and 16, before he may be considered eligible for parole.
(§ 186.22, subd. (b)(4)(C).) The matter is remanded to the trial court with directions (1)
to prepare a supplemental sentencing minute order and an amended abstract of judgment
reflecting these changes to defendant’s sentence, and (2) to forward a copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
MILLER Acting P. J.
SLOUGH J.
51
AI Brief
AI-generated · verify before citing
Holding. The court properly revoked the defendant's pro. per. status due to his serious and obstructionist misconduct involving witness intimidation, and the trial court did not abuse its discretion in managing courtroom security. The appellate court modified the judgment to strike improper gang enhancement terms and correct parole eligibility periods, but otherwise affirmed the convictions and sentence.
Issues
Did the trial court abuse its discretion in revoking the defendant's right to self-representation?
Did the trial court improperly delegate authority regarding courtroom security and handcuffing to the bailiff?
Did the trial court err in its jury instructions regarding the reasonable doubt standard?
Was there sufficient evidence to support the gang enhancements on the witness dissuasion convictions?
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The handcuffing and temporary removal of defendant from the courtroom was proper, because it was supported by a manifest need to maintain courtroom security”
“We modify the judgment to correct this gang enhancement sentencing error, but we affirm the judgment in all other respects.”