Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA032202, Charles A. Chung, Judge.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Vincent Reynolds appeals from the judgment entered following his conviction by jury on count 1 – assault by a state prisoner (Pen. Code, § 4501) and count 2 – assault by a life prisoner (Pen. Code, § 4500), each with infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), and following his conviction for mayhem (Pen. Code, § 203), with admissions that he suffered two prior felony convictions (Pen. Code, § 667, subd. (d)). The court sentenced appellant to prison for a total unstayed term of 27 years to life on count 2, with a concurrent term of 25 years to life on count 3, and imposed a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1). Appellant claims trial error occurred, and respondent claims sentencing error occurred. We modify the judgment and, as modified, we affirm it.
The jury convicted appellant of mayhem as a lesser included offense of count 3 - aggravated mayhem (Pen. Code, § 205).
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on January 2, 2005, appellant, an inmate in state prison, committed the above offenses when he stabbed a fellow inmate in the eye with a shank, causing loss of the eye.
CONTENTIONS
Appellant claims the trial court’s employment of a stealth belt and additional security measures during his jury trial violated his rights to due process, to a fair trial, and to assist in his own defense. Respondent claims two additional Penal Code section 1465.8, subdivision (a)(1) court security fees must be imposed.
DISCUSSION
1. The Trial Court’s Employment of Two Additional Security Personnel Was Proper.
a. Pertinent Facts.
On September 19, 2006, prior to trial, the trial court indicated that appellant, a prison inmate, would wear a stealth belt during jury trial. Appellant consented. The court indicated the belt would be attached, outside the presence of the jury, to appellant’s chair and, when worn by appellant, the belt would not be visible.
On September 20, 2006, appellant, outside the presence of the jury, objected to the location in the courtroom of two uniformed California Department of Corrections (CDC) correctional officers. The two officers were seated directly behind appellant.
The record reflects the presence of three additional security personnel. One was an armed bailiff whom the court indicated was standing in his normal position, “off to the far right.” The court indicated one could not get any farther from appellant than the bailiff was. Another was an unarmed CDC investigating officer wearing civilian clothes who was seated at counsel table. The third was an armed CDC correctional sergeant seated in the gallery. The sergeant was responsible for transporting appellant. Appellant indicated that if the two officers seated directly behind him were not relocated, he would withdraw his consent to the use of the stealth belt and ask that no physical restraints be imposed on him.
The court spoke with the above mentioned sergeant, who advised the court as follows. It was the position of the “California State Prison, Los Angeles County Transportation Unit, California Department of Corrections” that the correctional staff in the courtroom were the minimum required. The two uniformed CDC officers seated directly behind appellant were unarmed, and were located close to him because they were primary responders in the event they had to respond to appellant. The sergeant and bailiff were considered secondary responders because they had firearms.
Appellant was a prison inmate serving a sentence of 15 years to life for second degree murder. However, the same minimum number of correctional staff would have been in the courtroom during a jury trial even if appellant had been serving a prison sentence for a minor felony and had been arrested for drug possession in prison. In prison, appellant was part of the general population, and was in a maximum security yard.
The court noted the following. Appellant was currently charged with three felony counts and had suffered two prior strikes; therefore, he was facing the prospect of multiple life sentences. Appellant was charged in the present matter with stabbing an inmate in the eye, causing the loss of the eye.
The court asked about appellant’s conduct in prison. The sergeant indicated that, since appellant’s imprisonment in 1981, he had engaged in mutual combat and had committed attempted murder of an inmate. He also had threatened staff, obstructed a peace officer, and disobeyed orders. The sergeant also indicated that the alleged victim in the present case would, at his request, be accompanied by two uniformed correctional officers who would be present while he testified.
The court noted that appellant would be escorted into and out of the courtroom outside the presence of the jury. The court concluded the security was reasonable, necessary, and the minimum for any case, especially where appellant was already serving a life sentence for murder and his current conduct was essentially aggravated mayhem.
Appellant argued the CDC policy was contrary to state law and the court could not rely on that policy to determine the minimum security needs. Appellant also argued that if he had four personnel guarding him, there should be four guarding the victim. The court noted there were only two CDC officers behind appellant, and a bailiff and an investigating officer were normally present in court. The court indicated appellant had conducted himself professionally, the court expected him to continue to do so, and the court wanted to ensure that appellant had a fair trial.
During jury selection, the court, with appellant’s consent, admonished the jury as follows: “I want to point out, obviously you’ve been aware that this is a state prison case and you have seen correction officers present in court. I want to let you know that the number and the placement of the officers really have no bearing in this case. This is standard protocol. So . . . if you have a defendant that was in state prison for a very low grade crime, we would still have the same number of officers placed in the same position. It does not matter and has no reflection on this defendant and I want to make that absolutely clear. [¶] When you see the victim come in and testify, you will see him also flanked by officers just because it is a state prison case. I don’t want you to infer in any way by the number of officers in court that it reflects poorly on anyone, be it the victim or the defendant.”
During discussions concerning jury instructions, the court noted appellant wanted the court to give an instruction telling the jury not to consider physical restraints placed on appellant. Appellant indicated he wanted the instruction in the event the jury had seen the stealth belt. The court indicated it believed that, based on everything it had seen, the jury was unaware that appellant was wearing a stealth belt. The court added that the court did not feel that the belt interfered with appellant’s communications with his attorney, and the court saw them conversing quite regularly and often.
b. Analysis.
Appellant claims the trial court’s employment of the stealth belt and additional security precautions during trial violated his rights to due process and a fair trial, and his right to assist in his own defense. We disagree.
Notwithstanding the heading in appellant’s brief, appellant’s argument does not challenge the trial court’s use of the stealth belt. Nor does appellant challenge any restraints placed on his body, or any shackling. Appellant challenges only the security precautions consisting of the two CDC officers who were seated directly behind him in the courtroom.
In People v. Hayes (1999) 21 Cal.4th 1211 (Hayes), the trial court permitted various security precautions, including an extra sheriff’s deputy in the courtroom and two stationed outside it. The defendant claimed the trial court erred by failing to conduct a hearing at which evidence could be presented on the issue of whether the security precautions were justified. Our Supreme Court’s discussion of that issue is pertinent here.
In Hayes, our Supreme Court stated, “Neither due process nor any other constitutional right of a criminal defendant mandates a hearing on the necessity for courtroom or courthouse security. Appellant’s attempt to analogize the courtroom security measures of which he complains to shackling and other physical restraint of a defendant, and his reliance on authority related to that practice is unpersuasive. Both this court and the United States Supreme Court have recognized that the use of security personnel, even in the courtroom, is not so inherently prejudicial that it must be justified by a state interest specific to the trial.” (Hayes, supra, 21 Cal.4th at p. 1268.)
Hayes continued, “‘The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. . . . Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.’ (Holbrook v. Flynn (1986) 475 U.S. 560, 569 . . .; see also People v. Duran (1976) 16 Cal.3d 282, 291, fn. 8.) [‘Unless they are present in unreasonable numbers, such presence need not be justified by the court or the prosecutor.’].) (Hayes, supra, 21 Cal.4th at p. 1268.)
Hayes then stated, “In Holbrook v. Flynn, supra, 475 U.S. 560, the high court opted for a case-by-case consideration of whether challenged security measures are so inherently prejudicial as to deny the defendant the constitutional right to a fair trial. . . . [T]he court must determine only whether the security practice or practices presented an ‘unacceptable risk’ that impermissible factors will come into play. [Citation.] The court should look ‘at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.’ [Citation.]” (Hayes, supra, 21 Cal.4th at p. 1269.)
Finally, Hayes said, “A trial court has broad power to maintain courtroom security and orderly proceedings. [Citations.] That discretion was not abused here. Appellant has not demonstrated actual prejudice, and we find nothing in the description of the security measures utilized at his trial . . . that is so inherently prejudicial as to warrant a conclusion that in reaching a verdict the jurors might have been affected by their observation of those measures.” (People v. Hayes, supra, 21 Cal.4th at p. 1269.)
In the present case, appellant was convicted of three offenses. His disciplinary record in prison reflected a violent history. He was already serving a life term in prison. As to his current charges at trial, two of them, assault by a life prisoner (Pen. Code, § 4500) and aggravated mayhem (Pen. Code, § 205), carried prison terms of life without the possibility of parole for nine years, and life with the possibility of parole, respectively. That is, the trial court reasonably could have concluded that appellant had little to lose as a matter of personal liberty if he had wanted to act out violently in court. The trial court did not abuse its discretion in permitting the two uniformed and unarmed CDC officers to be seated directly behind appellant in the courtroom. Moreover, the court’s practice was not inherently prejudicial and appellant has failed to show prejudice; therefore, no violation of his right to a fair trial or other constitutional right occurred.
2. Imposition of Two Additional $20 Court Security Fees Is Mandatory.
At sentencing, the trial court imposed a single $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1). That subdivision says, in relevant part, “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, . . .”
Respondent claims that since appellant suffered three current convictions, two additional $20 court security fees must be imposed pursuant to the above subdivision, with the result that one $20 fee for each conviction is imposed. Respondent is correct. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) We will modify the judgment accordingly.
DISPOSITION
The judgment is modified by imposing two additional $20 Penal Code section 1465.8, subdivision (a)(1) court security fees and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.
We concur: CROSKEY, Acting P. J. ALDRICH, J.