Opinion
E070130
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. EUGENE EDWARD MOORE, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17002043) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Reversed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Eugene Edward Moore contends that his conviction on several criminal charges must be reversed because he was unjustifiably and visibly shackled during trial, and the trial court failed to instruct the jury to disregard the restraints. Moore argues that he was thereby denied his right to a fair trial. We agree and reverse the judgment.
Also pending is a "Petition for Writ of Mandate/Prohibition Requesting Order Vacating Judgment and Recall of Sentence" filed by Moore on his own behalf. This petition will be addressed by a separate order.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2017, the neighbors of a vacant house had been periodically checking it because there had been a problem with people breaking in. At trial, the prosecution presented evidence that on the morning of May 24, 2017, one of the neighbors, H.P., saw an unfamiliar man walking up the house's driveway. He called another neighbor, S.S., to ask whether anyone was supposed to be at the house; she said no.
A short time later, S.S. drove by the house and saw that a side door, which had been shut for months, was open. A pickup truck was parked in front, and its cargo bed was "full of stuff" that S.S. recognized as being from the house. S.S. parked and took pictures of the truck, its contents, and its license plate. As she was doing so, two men came out of the side door carrying more items. At trial, she identified the two men as Moore and his codefendant, who is not party to this appeal.
The two men began screaming "Hey, hey, hey," at S.S. in a manner that she perceived as angry. She was scared, so she left immediately in her vehicle. She drove to H.P.'s residence; on the way, she called H.P. and told him someone was breaking into the house and that she was on her way to his residence, and then she called 911.
From the street outside H.P.'s residence, S.S. watched the men from a distance. For a few minutes, the men also watched her, leaning against the truck with arms crossed and staring at her in an intimidating manner ("mad-dogging" her). They then got into the truck and drove away, passing H.P.'s residence. As they did so, the driver, Moore's codefendant, leaned over Moore and screamed something at S.S., again giving her a "very scary" look.
Both H.P. and S.S. followed the truck in their own vehicles as it drove away, and S.S. again called 911 as they drove. Police responded and pulled the truck over. S.S. and a third neighbor identified items in the truck as having come from the house.
The owner of the house testified at trial that he had not given anyone permission to be at the house on May 24, 2017. He recognized some of the items recovered from the truck as being taken from his house. He did not recognize either Moore or his codefendant.
The owner of a different house on a different street in the area testified that on May 24, 2017, he had spoken by telephone with someone who requested permission to remove scrap metal from his property. He gave the person permission to do so. He did not give anyone permission to take anything from the house that Moore and his codefendant were accused of burglarizing, or any other house on that street. He did not identify the person with whom he had spoken as either Moore or his codefendant.
Neither Moore (representing himself) nor his codefendant (represented by counsel) presented any affirmative defense at trial.
The jury found Moore guilty as charged, convicting him of one felony count of burglary (Pen. Code, § 459) and one misdemeanor count of receiving stolen property (§ 496, subd. (a).). The jury also found Moore's codefendant guilty of the same charges. Moore admitted that he had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), as alleged. The trial court dismissed seven prison prior enhancement allegations (§ 667.5, subd. (b)), since those prior convictions had all been reduced to misdemeanors pursuant to Proposition 47. The trial court sentenced Moore to six years in prison.
Further undesignated statutory references are to the Penal Code.
II. DISCUSSION
On appeal, Moore contends the trial court abused its discretion in ordering him shackled during trial, and then failed to instruct the jury as required to disregard the restraints. We find that these contentions have merit, and therefore reverse the judgment.
A. Additional Background
At a pretrial hearing on a section 995 motion brought by Moore, Moore's hands were shackled. The record does not indicate whether his feet were also shackled. The court noted that Moore had "made a comment regarding restraints," apparently just before the matter went on the record. The court asked whether Moore was able to write despite the restraints; he responded that he could not. The court instructed the bailiff to unshackle Moore's writing hand. The bailiff responded that the keys were not available; they were in a "flight box" because of an unspecified "security concern." On that basis, the court decided not to unshackle Moore "at this time," and the hearing proceeded.
The transcript of the hearing begins with the following comment by the court: "Let me stop you there. Mr. Moore, we're going to go on the record on the [section] 995 motion."
In advance of jury selection, the court addressed several preliminary matters. Moore raised the issue of "[t]hese restraints"; it can be inferred from the record that both his hands and legs were shackled. The court initially told Moore that he would "be unrestrained during the trial," but then checked with the bailiff, asking "What's your position . . . on the restraints regarding the defendants?" The bailiff responded "I believe they do come off. Let me confirm that with my sergeant. [¶] . . . [¶] Since he is in trial, they do come off. I'll confirm and get back to you." After dealing with other issues, the court took a recess.
The record reflects that after the recess, Moore's hands were free, but his legs were shackled. The court asked Moore, "Are you satisfied with that?" Moore responded that he was. The court then made the following comment "for the record" regarding Moore's restraints: "Mr. Moore is currently in segregated housing with the San Bernardino County Sheriff's Department. And that's based on a number of factors, but the most prominent one is that in 2010 when he was at Wasco state prison, the Department of Corrections placed him in segregated housing because of an assault on a correctional officer. So that's one of the reasons why the sheriff's department has put him in segregated housing. [¶] . . . [A]ccording to Sergeant Landovazzo . . . when he's moved around for court appearances and at the jail, he's moved singularly with multiple deputies. So that's the reason why they placed him in that housing. [¶] I've talked on the record with Mr. Moore and he agrees to the leg shackles to be on, but his hands will be free."
Moore's codefendant, through his counsel, expressed his "preference that he be unshackled." The trial court ordered him unshackled, reasoning that there was "no indication" that the codefendant had any "prior history" of "lack of cooperation or assaults on law enforcement."
The trial court made an effort to arrange courtroom procedures so that the jury would not be able to see that Moore's legs were shackled. This effort, however, was unsuccessful. During jury selection, codefendant's counsel inquired of Prospective Juror No. 59 (JN59) whether he would be comfortable not getting answers to any questions that may "pop into your mind . . . maybe about one of the witnesses, maybe about the defendants." JN59 responded: "Not really." He admitted that one such question that he had already wondered about was why "one man is wearing chains and the other is not." He expressed that he would have a "hard time" abiding by an instruction not to consider that issue.
The trial court then intervened. It addressed several of JN59's questions, including by making the following comments on "court security and chains": "[O]ne juror mentioned one defendant is wearing chains, the other's not. Mr. Moore is wearing chains, [his codefendant] is not. Those are security issues that the Court worked on and it's not any concern of yours. I will give you an instruction in writing, but the fact the defendant may be in custody is not something you're to consider in any way, shape or form . . . in your deliberations in this trial."
The trial court then asked if anyone on the jury panel had a "problem" with what it had just explained. A different juror, Prospective Juror No. 49 (JN49) raised his hand. JN49 expressed a concern about "the fact that we have a man here chained up" and, though he could not articulate exactly why it bothered him, stated that it "might" interfere with his decision making in the case. The trial court responded as follows: "We're just trying to determine whether or not the offenses alleged happened. We have a charge of burglary of an unoccupied residence and receiving stolen property. The People have the burden of proving those charges beyond a reasonable doubt. I'm going to be reading you jury instructions that list what you have to find beyond a reasonable doubt in order to find them guilty. It's as simple as that. I'm not sure why if the person's wearing chains around his ankles in the courtroom has any factor in that whatsoever." In further questioning, JN49 stated that he could "live with that" and that he would be fair and impartial to both defendants, and jury selection proceeded.
During the next recess, Moore orally requested a mistrial on the ground that one of the prospective jurors had seen him in chains and "prejudiced everybody." He also requested that the restraints be removed "so the people can see me walking around." The trial court refused both requests, denying the motion for a mistrial and commenting regarding the restraints as follows: "I'm sure the Court of Appeal will look at it. But I've made a record why you're restrained. Once a juror noticed it I explained the reason why and I instructed them not to consider that for any purpose. I will be giving the jury an instruction in writing that they're not to consider that for any purpose. So that's where we're at. Your motion is denied."
Jury selection continued and was completed the following day with no further mention in the record of Moore's restraints. Neither JN49 nor JN59 was selected to sit on the jury.
During trial, Moore filed a written "Motion to Declare Mistrial Due to Undue Restraints Known by Jury (Highly Prejudicial)." The trial court denied the motion, noting for the record that "Mr. Moore is still in restraints."
B. Applicable Law
"'Under California law, "a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 870; see also Deck v. Missouri (2005) 544 U.S. 622, 624 [federal constitution "forbids the use of visible shackles . . . unless that use is 'justified by an essential state interest'—such as the interest in courtroom security—specific to the defendant on trial"].) The removal of physical restraints is desirable to avoid "possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant's decision to take the stand . . . ." (People v. Duran (1976) 16 Cal.3d 282, 290 (Duran).) "[E]ven when the record in an individual case establishes that it is appropriate to impose some restraint upon the defendant as a security measure, a trial court properly must authorize the least obtrusive or restrictive restraint that effectively will serve the specified security purposes." (People v. Mar (2002) 28 Cal.4th 1201, 1226.)
"In general, the 'court has broad power to maintain courtroom security and orderly proceedings' [citation], and its decisions on these matters are reviewed for abuse of discretion." (People v. Lomax (2010) 49 Cal.4th 530, 558.) Under the "manifest need" standard, however, "the trial court's discretion is relatively narrow." (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390.) "The imposition of restraints without evidence in the record establishing a threat of violence, escape, or nonconforming conduct is an abuse of discretion." (People v. Gamache (2010) 48 Cal.4th 347, 367-368; see also Duran, supra, 16 Cal.3d at p. 291 ["[t]he showing of nonconforming behavior in support of the court's determination to impose physical restraints must appear as a matter of record . . . ."].) Moreover, "the Courts of Appeal have generally read Duran as requiring that a defendant make specific threats of violence or escape from court or demonstrate unruly conduct in court before in-court restraints are justified." (People v. Valenzuela (1984) 151 Cal.App.3d 180, 192.)
In general, neither the nature of the current charges nor a defendant's prior convictions, without more, justify restraints. (See Duran, supra, 16 Cal.3d at p. 293 ["The fact that defendant was a state prison inmate who had been convicted of robbery and was charged with a violent crime did not, without more, justify the use of physical restraints"]; People v. Burnett (1980) 111 Cal.App.3d 661, 667 ["We know of no case wherein shackling was justified where a defendant's ambulant propensities were demonstrated only by a seven-year-old escape conviction"]; cf. People v. Condley (1977) 69 Cal.App.3d 999, 1006 [no abuse of discretion to order restraints during trial of codefendants with lengthy records of joint escape attempts on trial for another escape; only legs shackled and restraints kept out of view of the jury].)
A formal hearing is not required to show manifest need for physical restraints, but "the record must show the court based its determination on facts, not rumor and innuendo," and that it did not simply "defer decisionmaking authority to law enforcement officers." (People v. Stevens (2009) 47 Cal.4th 625, 633, 642.) On appeal, we "consider whether the trial court made the findings necessary to impose a particular security measure—that there was a manifest need, and that the measure chosen was the least obtrusive that would still be effective—and further whether those findings were supported by substantial evidence." (People v. Gamache, supra, 48 Cal.4th at p. 368.) "[U]njustified shackling [in view of the jury] is error of federal constitutional dimension and compels reversal unless the state demonstrates beyond a reasonable doubt that the shackling did not contribute to the verdict." (People v. McDaniel (2008) 159 Cal.App.4th 736, 745 (McDaniel); cf. In re DeShaun M. (2007) 148 Cal.App.4th 1384, 1388, fn. 4 [where physical restraints were not seen by jury, courts have applied less stringent standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
Additionally, if the defendant is physically restrained in a manner that is visible to the jury, the trial court "shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant's guilt." (Duran, supra, 16 Cal.3d at pp. 291-292.) So instructing the jury, however, does not necessarily render harmless a trial court's abuse of discretion in ordering restraints. (See McDaniel, supra, 159 Cal.App.4th at pp. 746-747 & fn. 9 [finding prejudicial abuse of discretion in part because jury was instructed to disregard restraints only at the close of evidence, and not at the beginning of trial, tainting jurors' initial reactions to defendant and his defense].)
C. Analysis
1. Showing of Manifest Need
Moore contends that there was no showing of a manifest need for him to be physically restrained during trial. We agree.
The trial court did not articulate the manifest need for physical restraints that Duran and subsequent case authority requires. The court did not find that Moore behaved in a violent or threatening manner during the proceedings, or that he had threatened violence, escape, or similar "nonconforming" behavior, and no evidence of such behavior appears in the record. (See Duran, supra, 16 Cal.3d at p. 291.) Rather, the trial court stated only that jail officials had decided that Moore should be held in segregated housing and that extra security precautions were in place for transporting Moore from jail to the courtroom, and it equated those measures with the need for Moore be physically restrained in the courtroom during trial. This reasoning is not satisfactory under established case law. (See People v. Stevens, supra, 47 Cal.4th at p. 642 [trial court may not "defer decisionmaking authority" regarding physical restraints during trial to law enforcement officers]; People v. Valenzuela, supra, 151 Cal.App.3d at pp. 191-192 [trial court abused discretion by ordering physical restraints during trial for defense witnesses, prisoners in maximum security unit of maximum security prison, based solely on their violent backgrounds]; see People v. Cunningham (2015) 61 Cal.4th 609, 632 [while in transit between jail and court defendant may be restrained without "any particularized showing of need"].) The trial court noted that Moore had been placed in segregated housing because of a 2010 assault on a correctional officer. But a history of previous violent crimes does not, without more, justify physical restraints during trial. (Duran, supra, at p. 293; People v. Valenzuela, supra, at pp. 191-192.) We therefore conclude that the trial court abused its discretion because it allowed Moore to be physically restrained during trial, but the record does not demonstrate a manifest need for those restraints."
As the People point out, before jury selection, Moore expressed that he was "satisfied" with having his legs shackled but his hands free. (See People v. Tuilaepa (1992) 4 Cal.4th 569, 583 [failure to object to restraints in trial court forfeits claim on appeal].) There is no dispute, however, that Moore subsequently withdrew that consent and expressly objected to his restraints. The trial court did not augment the findings (stated above) it had previously made, which may have been adequate absent an objection, but were inadequate to justify physically restraining Moore during trial over his objection.
The People argue that Moore's restraints were justified because he also represented a "flight risk," noting he has a prior conviction for escape without force. The People state that there is "some evidence that deputies were aware that he was a flight risk when at the preliminary hearing he requested to be unshackled and the deputy noted the key was in a 'flight box' and was not there. These arguments fail for several reasons.
First, there is no substantial evidence that Moore had attempted or threatened escape, or otherwise acted in a manner that suggested he might try to escape, at any time during this case. The record provides no detail about what a flight box is, or any information about procedures or policies regarding its use. We have no way to determine whether the flight box was used by the courtroom deputies because of some specific event demonstrating Moore to be a present flight risk, because Moore's criminal history included a conviction for escape, or because it is simply a place where the deputies routinely put the keys to restraints. The ambiguous and fleeting mention of a flight box in the record, therefore, does not constitute substantial evidence that Moore was considered a flight risk by the courtroom deputies, much less that he in fact presented such a risk.
Second, assuming the deputies were aware of some information that Moore was a flight risk and acted accordingly, there is no indication that the trial court had evidence to determine Moore a flight risk. In discussing Moore's restraints "for the record," the trial court made no express finding that it considered Moore a flight risk, noting only Moore's assignment to segregated housing while in jail, the 2010 assault on a correctional officer that apparently was the reason for that assignment, and extra security measures taken while transporting Moore from jail to the courtroom. Indeed, the "Criminal History Summary" the People cite as evidence of Moore's prior escape conviction was filed with the court in connection with his sentencing, long after the shackling determination. Moore's escape conviction is not among the prior convictions alleged in the first amended information. It therefore seems that the trial court likely was not even aware of Moore's escape conviction when it ordered Moore shackled during trial. (See McDaniel, supra, 159 Cal.App.4th at p. 745 [rejecting argument that information collected "after trial may be used to retrospectively justify the shackling of a defendant where the trial court fails to make a determination on the record before trial"].)
Finally, we note that Moore apparently suffered a conviction for escape without violence in 2001. Under authority holding that a "seven-year-old escape conviction" is insufficient, without more, to justify shackling a defendant during trial (see People v. Burnett, supra, 111 Cal.App.3d at p. 667), evidence of Moore's escape from twice as long ago certainly will not suffice.
In addition to Moore's history of violence and escape, the People also propose that the physical restraints were justified by Moore's "uncooperative behavior during the proceedings." The behavior identified, however, was entirely verbal; sometimes talking over the court, and "some outbursts, not in response to any questions." It is well settled that verbal misbehavior, without more, does not support a finding of manifest need for physical restraints. (People v. Soukomlane (2008) 162 Cal.App.4th 214, 230.)
We conclude that the trial court abused its discretion. Neither the evidence cited by the trial court in its statement for the record regarding Moore's restraints, nor any other evidence in the record, suffices to support the trial court's order that Moore wear leg shackles during trial.
2. Instructional error
Moore argues that the trial court also erred by failing to instruct the jury to disregard his restraints by giving CALCRIM No. 204. We agree. During voir dire, the jurors became aware that Moore was restrained. The trial court thereby had a sua sponte duty to instruct "that such restraints should have no bearing on the determination of the defendant's guilt." (Duran, supra, 16 Cal.3d at pp. 291-292.)
CALCRIM No. 204 provides as follows: "The fact that physical restraints have been placed on [defendant] is not evidence. 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." The trial court did not instruct the jury using CALCRIM No. 204, and it did not give any substantially similar alternative instruction.
The People contend that the trial court did not have a sua sponte duty to instruct the jury to disregard Moore's restraints because the record does not establish whether the jury could in fact see the restraints throughout the trial. We reject this contention because the jury was made aware of his restraints during voir dire. Appellate opinions regarding restraints in trial often are phrased primarily in terms of whether the restraints at issue were visible to the jury. (E.g. Duran, supra, 16 Cal.3d at pp. 291-292; McDaniel, supra, 159 Cal.App.4th at p. 744.) Nevertheless, such phrasing is best read only as a reflection of the way juries often become aware of a defendant's restraints, rather than an indication that if jurors learn of restraints some other way, the trial court has no duty to instruct. One of the main points of Duran and subsequent case law is that the jury's awareness that the defendant is restrained is prejudicial, regardless of how that awareness came about: "We believe that it is manifest that the shackling of a criminal defendant will prejudice him in the minds of the jurors." (Duran, supra, at p. 290; see also People v. Burnett, supra, 111 Cal.App.3d at p. 669 ["While it may be true that the chains were not visible to the jury . . . their effect on appellant was clearly manifest"]; People v. Zatko (1978) 80 Cal.App.3d 534, 552 [no instruction regarding restraints appropriate where jury was "unaware of the restraints," because so instructing "would have called to the attention of the jury the very thing that was trying to be avoided.")
Here, during jury selection, at least one juror saw Moore's restraints, and the entire jury panel, including the individuals eventually seated as jurors, were informed that Moore was physically restrained in court through the subsequent discussion in open court, including the trial court's remark that "Mr. Moore is wearing chains, [his codefendant] is not." As Moore sat through his trial, the natural inference for a juror to have made, whether or not they personally saw Moore's restraints, is that he continued to wear shackles throughout the proceedings. Moore requested to be released from his restraints and to be permitted to move around the courtroom in view of the jury, to dispel any perception that he remained in shackles, but that request was denied. In such circumstances, Duran and its progeny require that the jury be instructed to disregard the restraints.
The People propose that the trial court's comments, although not identical in wording to CALCRIM no. 204, effectively instructed the jury to disregard Moore's restraints. Not so. During voir dire and after trial, the trial court instructed the jury to disregard the fact that Moore was "in custody." The posttrial instruction expressly applied to both defendants. The jury was well aware, however, that both Moore and his codefendant were in custody, but only one of them was physically restrained during trial. The trial court never expressly instructed the jury to disregard the shackles in particular, except arguably by means of a passing remark during jury selection that "security issues" are "not any concern of yours." The trial court also commented during jury selection that it was "not sure" how the fact that a defendant was "wearing chains around his ankles in the courtroom" should "factor in" to the determination of "whether or not the offenses alleged happened." But this comment does not expressly instruct the jury that it must, as a matter of law, disregard the defendant's restraints and not consider them for any purpose or discuss them during deliberations. To the contrary, although this was certainly not the trial court's intention, the comment almost invites jurors to come to their own conclusions about how the "chains" might "factor in" to their evaluation of the evidence presented at trial. Had the court also instructed using CALCRIM No. 204, the matter would have been adequately clarified, but the court did not.
The written instruction given to jury after trial regarding the defendants' custody status is the following: "The fact that the defendants are in custody during this trial is due to whether or not the defendants have the financial ability to post bail. You must not consider the fact the defendants are in custody for any purpose and are not to consider this fact as evidence of guilt or for any other purpose."
We conclude, therefore, that the jury was aware of the physical restraints Moore wore during trial, and that the trial court erred by failing to instruct the jury sua sponte that those restraints must be disregarded by giving CALCRIM No. 204 or an equivalent alternative instruction.
3. Prejudice
The People argue that any error by the trial court was harmless under either the Watson standard, requiring reversal only if it is reasonably probable that the appellant would have obtained a more favorable result in the absence of error (Watson, supra, 46 Cal.2d at p. 836), or the standard for federal constitutional error articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), requiring the People to prove beyond a reasonable doubt that the error did not contribute to the verdict. We find that the Chapman standard applies, and that the People have not proven the lack of prejudice beyond a reasonable doubt.
The People argue that the less stringent Watson standard applies because "the court did not order visible restraints and there is nothing on the record that suggests that any juror deciding appellant's case actually saw the restraints during voir dire or trial." As discussed above, however, despite the court's efforts to keep Moore's shackles out of view, the shackles were discussed during voir dire, so all the jurors were made aware that Moore was physically restrained throughout trial (and that his codefendant was not), regardless of whether or not they saw the restraints with their own eyes. The Watson standard may be appropriate when the jury is unaware of the defendant's restraints. (See People v. Mar, supra, 28 Cal.4th at p. 1225 & fn.7 [involving improper use of a "stun belt" not visible to the jury, finding prejudice even under Watson standard; declining to decide whether more rigorous Chapman test applied]; People v. Jackson (1993) 14 Cal.App.4th 1818, 1829 & fn. 14 ["The potential effect on the presumption of innocence is eliminated" if restraints are "totally concealed" from the jury, so the error is not constitutional error].) Here, the jury was aware of Moore's restraints, and it was not instructed to disregard those restraints. As discussed above, on these facts, we find it entirely plausible that the jury in fact considered Moore's restraints and discussed them during deliberations. These circumstances give rise to a serious risk that the "presumption of innocence and the related fairness of the factfinding process" was undermined. (Deck v. Missouri, supra, 544 U.S. at p. 630.) The Chapman standard for evaluating federal constitutional error is appropriate here. (Deck v. Missouri, supra, at p. 635 [Chapman standard applies where court without justification orders shackles that are seen by jury].)
We are not persuaded beyond a reasonable doubt that the trial court's errors were harmless. The evidence against Moore and his codefendant was strong, but not so overwhelming as to preclude Moore from offering a potentially viable jury argument that the People had failed to prove the case beyond a reasonable doubt. Although many of the elements of the charged offenses were undisputed, Moore contested the proof as to the element of intent, arguing in essence that there was insufficient proof of criminal intent, as he could have had the intent to help his codefendant perform legitimate and authorized salvage or cleanup work. As is typically the case with intent, the element was not proved directly, but depended on the jury's inferences as to Moore's state of mind. As to this element, the jury reasonably could have concluded on the evidence presented that prosecution did not prove beyond a reasonable doubt that Moore had the requisite criminal intent (even though there was ample evidence for the jury to reach the opposite conclusion and properly convict Moore).
Absent an instruction like CALCRIM No. 204, there is a great risk that jurors openly discussed the shackles during deliberations and relied on them. One reason a defendant should not, absent manifest need, be physically restrained during trial is that "shackling undermines the presumption of innocence." (Deck v. Missouri, supra, 544 U.S. at p. 630; see also McDaniel, supra, 159 Cal.App.4th at p. 746 [jurors not instructed before trial to disregard the defendant's physical restraints were "free to wonder about [the defendant's] shackles, worry about him and their safety, and allow that distraction to taint their initial reactions to him . . . ."].) We might not find prejudice here if the jury knew about the shackles but had been instructed to disregard them. But, here, the jury was not expressly instructed to disregard them. Consequently, we cannot be confident that the jury actually made an intent determination from the evidence that was sufficiently free from the influence of seeing the shackles. We thus cannot say with confidence that the jury based its actual decision that it had no reasonable doubt as to his criminal intent solely on proper considerations. We consequently do not have sufficient confidence that the inferences that the jurors drew regarding the proof of defendant's intent would not have been different if jurors were never made aware of his shackles, or if they were clearly instructed to disregard them.
Finally, as acknowledged in Duran, "[w]hen a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged." (Duran, supra, 16 Cal.3d at p. 290.) Here, Moore was not charged with a violent crime. The prosecution's evidence did, however, include S.S.'s testimony that Moore and his codefendant behaved in an intimidating manner toward her. Thus, an inference that Moore is a violent person would tend to bolster the prosecution's theory of the case, and particularly the credibility of S.S.'s testimony, even though the charged offenses do not include a violent act as one of their elements. Also, particularly since Moore's codefendant was not shackled, such negative inferences about Moore would tend to undermine the persuasiveness of his arguments in his own defense, for example, that even if Moore's codefendant was guilty as charged, Moore had believed he was performing legitimate salvage work, rather than a burglary.
The People argue that "[i]t is well-established that brief glimpses of a defendant in restraints are not prejudicial." The cases on which they rely, however, are readily distinguishable from this one. In People v. Cunningham (2001) 25 Cal.4th 926, there was no question that the trial court properly found manifest necessity for the restraints, and the trial court explicitly instructed the jury not to consider the restraints, once the jury became aware of them despite efforts to keep them concealed. (Id. at p. 988.) In People v. Tuilaepa, supra, 4 Cal.4th at p. 584, the evidence established "at most, that jurors might have seen [the defendant] handcuffed and/or shackled in the hallway of the courthouse and might have assumed such restraints were not removed during trial." Here, in contrast, the trial court failed to make findings adequate to justify requiring Moore to be physically restrained during trial, openly discussed Moore's restraints in the presence of prospective jurors, including those eventually seated as jurors, and failed to instruct the jury directly and unambiguously that it must disregard the restraints for all purposes. We cannot find the trial court's errors, taken cumulatively, to be harmless in the circumstances of this case.
The People's argument that the physical restraints played no role in Moore's decision not to testify in his own defense is persuasive. Generally, one of the primary concerns regarding physical restraints on a defendant during trial is "the effect such restraints have upon a defendant's decision to take the stand . . . ." (Duran, supra, 16 Cal.3d at p. 290.) In this case, however, it does not appear that Moore's restraints were a major consideration in his decision not to take the stand. Moore expressed multiple times during the trial that he intended to testify. But he came to understand, through discussions with the trial court, that by introducing testimony of his good character, he would open the door to the prosecution introducing evidence of bad character, including his extensive criminal record. Outside the presence of the jury, he acknowledged that his "past is kind of ugly," and he therefore "reconsidered" whether it would be a good idea to testify. Nothing in the record affirmatively shows that defendant's physical restraints played any role in his decision not to testify. --------
III. DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: MILLER
Acting P. J. FIELDS
J.