California Court of Appeal Aug 6, 2021 No. E075442Unpublished
Filed 8/6/21 P. v. Seipel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075442
v. (Super.Ct.No. FWV19002527)
JAMES SEIPEL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West and
Michael A. Knish, Judges.* Affirmed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A.
Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
* Judge West presided over the trial. Judge Knish conducted the sentencing.
1
A police officer tried to pull over defendant James Seipel for failure to signal
before a lane change. Defendant stopped briefly, but then he took off again. During a
short pursuit, he ran a red light, broke the speed limit, and violated various other traffic
At trial, defendant represented himself. A jury found him guilty of reckless
evading. (Veh. Code, § 2800.2, subd. (a).) The trial court found one “strike” prior to be
true. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to a total of
two years, eight months in prison, along with the usual fines, fees, and ancillary orders.
Defendant contends that the trial court erred by:
1. Allowing defendant to appear before the jury in an orange jail jumpsuit.
2. Failing to instruct the jury not to draw an adverse inference from the fact that
defendant was in custody.
3. Failing to instruct on expert opinion testimony.
4. Refusing to reduce the conviction to a misdemeanor.
5. Imposing fines and fees without holding a hearing on defendant’s ability to
pay.
We find no prejudicial error that has been preserved for appeal. Hence, we will
affirm.
I
STATEMENT OF FACTS
The only trial witness was Ontario Police Officer Matthew Ellis.
2
On August 7, 2019, Officer Ellis was on patrol, in uniform, driving a marked
patrol car. At 2:35 a.m., he was going south, when he noticed a car heading north. It was
“swaying back and forth in the lane.” Officer Ellis made a U-turn and fell in behind it.
The car changed lanes, first to the right, and then back left again, without signaling.
Officer Ellis started a traffic stop by turning on his flashing red lights and siren.
After going two or three blocks, the car pulled over. Defendant was the driver.
Officer Ellis called for backup. He got out of his car; he ordered defendant to turn
off the car and to throw his keys out of the car. Defendant put his keys on the roof of his
car instead. He was “antsy”; he kept looking back over both shoulders and in the rear
view and side mirrors. Suddenly, he grabbed his keys back off the roof. Officer Ellis
yelled “Stop,” but defendant “peeled out.”
Officer Ellis followed, once again with lights and siren on. Defendant made a left
turn on red; two vehicles that had the green light had to “hit their brakes.” He drove 85
or 90 miles an hour in a 55-mile-an-hour zone. Defendant also straddled the first and
second lanes. Finally, he pulled into a gas station, stopped, and was arrested. The whole
pursuit lasted three or four minutes and covered almost two miles.
Officer Ellis testified that peeling out (Veh. Code, § 23109, subd. (c)), running a
red light (Veh. Code, § 21453, subd. (a)), making an unsafe turn (Veh. Code, § 22107),
speeding (Veh. Code, § 22350) and lane-splitting (Veh. Code, § 21658, subd. (a)) are all
point count violations. (See Veh. Code, § 12810, subds. (d)(1), (f).)
3
II
DEFENDANT’S APPEARANCE IN A JAIL UNIFORM
Defendant contends that the trial court erred by allowing him to appear before the
jury in an orange jail jumpsuit. He also contends that the trial court erred by failing to
instruct the jury not to draw an adverse inference from the fact that he was in custody.
A. Additional Factual and Procedural Background.
As mentioned, defendant chose to represent himself at trial. In a discussion of
pretrial matters, there was this exchange:
“THE COURT: Mr. Seipel, usually the defendant has someone bring him or her
some civilian clothing, so you don’t appear in front of the jury in your orange jumpsuit
where they can see that you’re being housed at the jail. Do you have someone that can
bring you some clothes that you can change into so that you’re not in your orange
jumpsuit?
“THE DEFENDANT: Possibly. [¶] . . . [¶] . . .
“THE COURT: Have them come to this department, Mr. Seipel, if someone has
clothing for you, have them come to this department and speak to my deputy, so my
deputy can explain to them where to take the clothing, okay?
“THE DEFENDANT: Okay.”
There was no further discussion of the matter. Defendant’s girlfriend was present
during this exchange, and she also attended the trial. Nevertheless, during the trial,
4
defendant evidently wore an orange jumpsuit; when Officer Ellis identified him as the
driver, he said, “He’s seated in the defense seat, wearing an orange jumpsuit.”
B. Letting Defendant Appear in an Orange Jumpsuit.
Defendant never objected to wearing an orange jumpsuit. Therefore, he forfeited
the contention that it was error to let him do so. “[A]lthough the State cannot,
consistently with the Fourteenth Amendment, compel an accused to stand trial before a
jury while dressed in identifiable prison clothes, the failure to make an objection to the
court as to being tried in such clothes, for whatever reason, is sufficient to negate the
presence of compulsion necessary to establish a constitutional violation.” (Estelle v.
Williams (1976) 425 U.S. 501, 512-513; accord, People v. Taylor (1982) 31 Cal.3d 488,
495-496.)
Defendant asserts that any waiver of the right not to appear in jail clothing must be
express and on the record. Williams and Taylor, supra, are to the contrary. “While . . .
the safer practice is for the trial court to take a personal waiver from a defendant
regarding his right to wear ordinary clothing before the commencement of a jury trial, the
court is under no sua sponte duty to raise the issue.” (People v. Williams (1991) 228
Cal.App.3d 146, 151.)
In his reply brief, defendant argues for the first time that he had no access to
civilian clothes. He notes that he had been in custody for three months; at one point, he
at least claimed that he had been living out of his car. This is insufficient to establish that
he could not get clothes. When the trial court asked if someone could bring him clothes,
5
he did not say no; he said, “Possibly.” His girlfriend was in the courtroom. Had he
objected, the trial court could have asked whether she could bring him some clothes. It
might even have authorized funds to buy clothes. Instead, he never raised the subject
again. Defendant failed to make a record, and thus he failed to preserve this claim.
Separately and alternatively, the asserted error was harmless. “To compel a
defendant to go to trial wearing jail clothing violates his constitutional rights to a fair
trial, due process, and equal protection. . . . Nevertheless, the error is not reversible per
se, but may be found harmless beyond a reasonable doubt under the Chapman standard
[citation]. [Citations.]” (People v. Meredith (2009) 174 Cal.App.4th 1257, 1262-1263.)
“Applying that test, we ask ‘whether it is clear beyond a reasonable doubt that a rational
jury would have rendered the same verdict absent the error.’ [Citation.]” (People v.
Canizales (2019) 7 Cal.5th 591, 615.)
An error may be held harmless under Chapman when “the evidence . . . is ‘of such
compelling force as to show beyond a reasonable doubt’ that the erro[r] ‘must have made
no difference in reaching the verdict obtained.’ [Citation.]” (People v. Harris (1994) 9
Cal.4th 407, 431, fn. omitted; see, e.g., In re Avena (1996) 12 Cal.4th 694, 731
[defendant’s appearance in jail clothes was harmless, “[g]iven that [he] confessed his
culpability in a taped confession, and was identified as the killer by [a] coparticipant
. . . .”].)
6
This was an open-and-shut case. The prosecution conclusively proved every
element of the crime with overwhelming and uncontradicted evidence.1 Defendant did
not deliver an opening or a closing argument. He did not so much as cross-examine
Officer Ellis.
Defendant argues that it was “debatable” whether he acted with wanton disregard
for safety. Reckless evading, as defined by Vehicle Code section 2800.2 requires that
“the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or
property . . . .” (Veh. Code, § 2800.2, subd. (a).) However, the statute further provides
that “a willful or wanton disregard for the safety of persons or property includes, but is
not limited to, driving while fleeing or attempting to elude a pursuing peace officer
during which time either three or more violations that are assigned a traffic violation
point count . . . occur . . . .” (Veh. Code, § 2800.2, subd. (b).) Proving three point count
violations is an alternative to proving the defendant’s actual state of mind. (People v.
Taylor (2018) 19 Cal.App.5th 1195, 1203.) Officer Ellis testified that defendant
committed not just three but five point count violations. Defendant’s only argument as to
why this does not show harmless error is that “the jury may have questioned the officer’s
credibility.” On this record, that is wishful thinking.
1 The prosecutor’s presentation was so thorough that, at one point, defendant objected that it was “highly repetitious”; the trial court agreed, “It is, indeed, highly repetitious.”
7
For the sake of completeness, we note that the jury was not correctly instructed on
point count violations as a way of proving willful or wanton disregard.2 The trial court
instructed the jury on reckless evading using CALCRIM No. 2181. It included the
language requiring the jury to find that “[d]uring the pursuit, the defendant drove with
willful or wanton disregard for the safety of persons or property.” It also instructed that
In any event, defendant forfeited his present arguments because he never raised
them below. For the same reason, we can hardly say the trial court abused its discretion
by failing to consider them.
The trial court additionally did not abuse its discretion because it had not yet heard
any evidence of any of these facts. Had there been a statement of facts in the
prosecution’s motions in limine, that would not be evidence, but arguably the trial court
could have treated it as a concession or an offer of proof. However, there was none.
In sum, the trial correctly ruled that defendant had provided no “legal or factual
basis” for his motion.
V
THE IMPOSITION OF A RESTITUTION FINE
WITHOUT A HEARING ON ABILITY TO PAY
Defendant contends that the trial court erred by imposing fines and fees without
holding a hearing on his ability to pay.
15
A. Additional Factual and Procedural Background.
The trial court found that defendant was unable to pay presentence investigation
costs (Pen. Code, § 1203.1b). However, it did impose a $300 restitution fine (Pen. Code,
§ 1202.4), a $300 parole revocation restitution fine, stayed (Pen. Code, § 1202.45), a $40
court operations assessment (Pen. Code, § 1465.8), and a $30 court facilities assessment
(Gov. Code, § 70373). Defense counsel did not object.
B. Discussion.
Defense counsel forfeited this contention by failing to object below. (People v.
Torres (2020) 47 Cal.App.5th 984, 991; see generally People v. Scott (1994) 9 Cal.4th
331, 353.) This is not a case in which the failure to object can be excused because an
objection would not have been supported by the law as it then stood. (See generally
People v. Perez (2020) 9 Cal.5th 1, 7.) Defendant’s contention is founded on People v.
Dueñas (2019) 30 Cal.App.5th 1157. Dueñas was decided in January 2019; defendant
was sentenced in July 2020. Defendant does not contend that the failure to object
constituted ineffective assistance of counsel.
16
VI
DISPOSITION
The judgment appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
SLOUGH J.
FIELDS J.
17
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for reckless evading, holding that the defendant forfeited his claims regarding his jail attire and fines by failing to object, and that any trial court errors were harmless given the overwhelming evidence of guilt.
Issues
Did the trial court err by allowing the defendant to appear in a jail jumpsuit?
Did the trial court err by failing to instruct the jury on the defendant's custody status?
Did the trial court err by failing to instruct the jury on expert opinion testimony?
Did the trial court err by refusing to reduce the felony conviction to a misdemeanor?
Disposition. affirmed
Quotations verified verbatim against the opinion
“the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.”
“This was an open-and-shut case. The prosecution conclusively proved every element of the crime with overwhelming and uncontradicted evidence.”