Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CH025432
ROBIE, J.
A jury convicted defendant William Frederick Rymer of assault with a deadly weapon by a life prisoner and possession by an inmate of a sharp instrument, and defendant admitted a prior conviction alleged as a strike. The trial court sentenced him to prison for life without possibility of parole, and he timely filed this appeal. Defendant contends the trial court abused its discretion by ordering him to be restrained during trial and the trial court failed to advise him properly before he admitted the strike. We shall affirm.
FACTS
Defendant stipulated that he was serving a life prison sentence. The People’s case principally consisted of the testimony of two correctional officers. On September 26, 2007, each officer, while on duty at High Desert State Prison, saw defendant repeatedly stab another inmate, and then throw away a sharp instrument, which was recovered. The defense did not present any evidence.
DISCUSSION
I Use Of Physical Restraints
“[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. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).) Defendant contends the People did not show a “manifest need” for restraints.
A trial court’s decision regarding imposition of restraints will be reversed only when an appellant shows “a manifest abuse of discretion.” (Duran, supra, 16 Cal.3d at p. 293, fn. 12.) The record shows the trial court acted within its discretion.
Before trial, defendant objected to the use of restraints. In response, Correctional Sergeant William Koenig, who is assigned to the “Investigative Services Unit” at High Desert State Prison, explained that defendant is a “level 4” inmate, the most severe level, that defendant is serving a life sentence, and that defendant had several disciplinary reports in his history. Specifically, in 1992 defendant had an “altercation” with another inmate, in 2002 he possessed a weapon, and in 2007 he battered an inmate. Sergeant Koenig also mentioned an “attempted murder,” referring to the instant offense, which had apparently already been adjudicated as an administrative rule violation. Sergeant Koenig believed defendant presented a security risk. He conceded defendant had never assaulted prison staff or expressed intent to create problems during court proceedings.
The People pointed out that defendant was a convicted murderer, and clarified that the proposed restraints would not be visible to the jury. Defense counsel emphasized that defendant had not shown any proclivity toward assaulting staff or disrupting court, therefore there was no need for any restraints. Defense counsel also argued the “For[r]est Gump” restraints might be seen by the jury.
The trial court ruled the “so called For[r]est Gump restraints” would be used “at least at jury selection and at that time before we actually start the trial out here [meaning, at the prison], I’ll let you make further arguments.” The trial court also stated it found “the People have met their burden for this relatively minor intrusion, considering the safety, public safety and security.”
The first day of trial, including jury selection, was held “downtown,” not on prison grounds.
Outside the presence of the jury, after the People made their opening statement, the trial court stated: “There has been prior discussion of what is commonly referred to as For[r]est Gumps as the leg braces that are currently applied to [defendant]. [¶] [Defendant], I understand you’re satisfied to continue through the afternoon with those; is that correct? [¶] THE DEFENDANT: Yes, sir.” Defense counsel did not concur, and whether defendant would be in restraints when the trial moved to the prison the next day was not settled. The trial court clarified that it found good cause for restraints for all “downtown” proceedings.
The People completed their case that day, and the defense stated it would not put on evidence. The next day, at a prison courtroom, the jury was instructed and the guilty verdicts were returned. There was no discussion of restraints on the record. There is no indication the jury learned of the existence of the restraints.
Defendant argues that this case is just like Duran, which also involved a life prisoner charged with a violent in-prison assault. (Duran, supra, 16 Cal.3d at p. 282.) In defendant’s view, absent evidence tending to show a prisoner-defendant may try to escape or disrupt the proceedings, it is an abuse of discretion to order restraints. Defendant cites cases to the effect that restraints are justified where there is evidence a prisoner may escape or disrupt the proceedings. (Duran, at pp. 290-291; People v. Burwell (1955) 44 Cal.2d 16, 32-33; People v. Kimball (1936) 5 Cal.2d 608, 611.) But those cases do not hold or imply that restraints are not justified unless there is such evidence.
Duran did not hold that a defendant’s status as a prisoner or the nature of the charges were irrelevant. Duran held the mere fact the defendant was an inmate charged with a violent crime did not of itself justify restraints. (Duran, supra, 16 Cal.3d at p. 293.) Put another way, “The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” (Id. at p. 291.)
The trial court did not rely solely on the fact that defendant was an inmate charged with a violent crime. The trial court knew that defendant was a convicted murderer serving a life sentence, but also heard about defendant’s specific disciplinary record while in prison. This included possession of a weapon and prior violence while in prison. The trial court was not compelled to find that the lack of disruptive courtroom behavior or escape attempts outweighed defendant’s “nonconforming conduct” while in prison.
Further, as the People observe, there is no showing the restraints caused prejudice. Even in cases where a trial court erroneously orders restraints, the error will be deemed “harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Defendant concedes the restraints were not seen by the jury, therefore they could not have affected the verdict. And neither defendant nor his counsel said the restraints impaired their ability to communicate or was a factor in defendant’s decision not to testify. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1214 [“nor is there any indication in the record that [Slaughter] was dissuaded from testifying by the presence of the leg restraint”].) And although prisoners are entitled to decent treatment, because defendant was a life prisoner, there is no reason to suppose that the use of leg restraints during the trial was a significant “affront to [his] dignity.” (See Duran, supra, 16 Cal.3d at p. 290.)
Defendant cites a case for the proposition that restraints necessarily cause a prejudicial impairment of attorney-client communications. He misreads the case. In People v. Harrington (1871) 42 Cal. 165, the California Supreme Court held that keeping the defendant in irons “without evident necessity” impaired his right to counsel. (Id. at pp. 168-169; see People v. Fierro (1991) 1 Cal.4th 173, 219-220 [characterizing Duran as a reaffirmation of Harrington].) But, as indicated, later California Supreme Court precedent does not presume prejudice, it must be shown on the record.
Finally, the evidence was uncontradicted and overwhelming. Two correctional officers saw defendant repeatedly stab another inmate and throw away a sharp instrument. Defendant stipulated that he was serving a life sentence. The defense offered no evidence or argument. In these circumstances, any error was harmless beyond a reasonable doubt. (People v. Medina (1995) 11 Cal.4th 694, 731.)
II Boykin-Tahl Error
Defendant contends the trial court failed to fully advise him of the constitutional rights he gave up by admitting the prior conviction. The People argue any error was harmless. We agree the error did not prejudice defendant, but such an error causes needless work for this court.
Before a trial court accepts an admission to a prior conviction, the trial court must advise a defendant of the same three constitutional rights waived by a guilty plea, that the defendant has the right to a jury trial, to confront witnesses, and to invoke the privilege against self-incrimination, the so-called Boykin-Tahl rights. (See Boykin v. Alabama (1969) 395 U.S. 238, 243 [23 L.Ed.2d 274, 279]; In re Tahl (1969) 1 Cal.3d 122, 132; In re Yurko (1974) 10 Cal.3d 857, 863.) Other advisements must also be given, but they are not at issue in this case. (See Yurko, at p. 864.)
Compliance with the longstanding Boykin-Tahl rule takes only moments, particularly with the use of a prepared script. (See, e.g., Cal. Judges Benchguides, Felony Arraignment and Pleas, Benchguide 91, Scripts and Forms (CJER 2008) 91.31, pp. 91:26-27 [incorporating script for admission to priors with script for guilty plea].) Even though in many cases all parties and the trial court understand that the defendant will admit one or more priors, the trial court must ensure the record reflects the proper advisements, and Boykin-Tahl error should be rare.
The information in this case alleged, as a strike, that defendant was convicted of murder in Butte County in 1991. Trial on the strike was ordered bifurcated.
After the jury announced it had reached verdicts, defendant waived his right to a jury trial on the prior, and his counsel and the prosecutor concurred in that waiver. The trial court advised defendant he had the “right to have the jury review your abstracts, your records from the prior conviction or convictions and they would have to deliberate to decide whether or not those in fact did occur. You have the right to have a trial by jury as to those issues alone. [¶] Do you understand your right to have that jury? [¶] THE DEFENDANT: I understand and I waive that right.”
The jury was then brought in, the guilty verdicts were received, and the jury was discharged.
When the People advised the trial court that they had evidence of the strike, defense counsel stated: “Why don’t we just take an admission.” After the prosecutor identified the strike, the following took place: “THE COURT: All right, Mr. Rymer, it is alleged as stated by Mr. Howe [the prosecutor], that you had previously suffered that conviction, that prior conviction set forth there and it is set forth in the information that was a conviction of a serious or violent felony or a juvenile adjudication. Do you acknowledge and admit that you were so convicted on that date of that charge in that county? [¶] THE DEFENDANT: I have suffered that conviction, yes. [¶] THE COURT: And you admit that? [¶] THE DEFENDANT: I admit that. [¶] THE COURT: All right, Mr. Funk [defense counsel], do you concur in that admission? [¶] MR. FUNK: Yes.” The trial court then found the strike true.
Defendant contends, and the People impliedly concede, that the trial court should have advised defendant of his right to confront the evidence of the prior and his right not to incriminate himself by admitting the prior. As stated above, those are two of the three Boykin-Tahl rights. We agree with defendant’s contention of error.
The California Supreme Court has held that the failure to give all of the Boykin-Tahl advisements may be deemed harmless when the record shows that the admission was voluntary and intelligent under all of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1174-1179.) Where a defendant had just finished a jury trial and then waived his right to a jury trial on a prior, the record was adequate to show the waiver was voluntary. (People v. Mosby (2004) 33 Cal.4th 353, 364-365; cf. People v. Christian (2005) 125 Cal.App.4th 688, 697-698 [defendant pled no contest to substantive offense, there was no information about his experience with criminal system, therefore waiver of rights by admission to prior convictions not deemed voluntary absent Boykin-Tahl admonishments].)
It is clear from this record that defendant, represented by counsel, wanted to admit the prior. Defendant does not contest the adequacy of the waiver of the right to a jury trial. There was no dispute that defendant was serving a life sentence, and the People were about to introduce the records of defendant’s murder conviction, when defense counsel announced that defendant would admit the prior. Defense counsel was presumably familiar with defendant’s criminal record, and after defendant admitted the conviction, defense counsel concurred in that admission.
As the People note, defendant had just completed a jury trial at which his counsel had exercised, on defendant’s behalf, his right to confrontation by cross-examining the People’s witnesses. Further, the trial court had instructed the jury that defendant did not have to testify and was presumed innocent. Defendant had just witnessed the exercise of his right to confrontation and had just heard the trial court explain his right not to testify at trial. In a similar case, Boykin-Tahl error was found to be harmless: “Here, defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation.” (People v. Mosby, supra, 33 Cal.4th at p. 364.)
The People also argue that defendant’s experience with the criminal justice system, resulting in his murder conviction, shows he was aware of his rights. Defendant contends the record does not show the nature of the murder conviction, whether by plea or jury trial, therefore it is not possible to infer that he knew his rights based on his prior experience. We agree that the record does not show what proceedings led to defendant’s prior conviction, but this does not show that the waiver in this case was not voluntary and intelligent.
As stated, defendant was advised of his right to a jury trial, had exercised his right to remain silent, and had witnessed his counsel exercising his right of confrontation on his behalf. Accordingly, we find the record shows defendant understood his rights and knowingly and voluntarily chose to admit the prior. The Boykin-Tahl error was harmless.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., CANTIL-SAKAUYE, J.