P. v. Farley
Filed 6/4/13 P.
v. Farley CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DEAN FARLEY, Defendant and Appellant. | F064052 (Super. Ct. No. BF132954A) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Michael L.
Pinkerton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A.
Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
This is an appeal from a judgment entered after a jury
trial. Defendant and appellant William
Dean Farley contends the trial court prejudicially erred in ordering defendant
shackled during trial. We conclude the
trial court’s determination was supported by the record and that, in any event,
any error was not prejudicial.
Accordingly, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
A deputy sheriff saw defendant
driving a stolen truck early on July 13, 2010, and tried to detain him. Defendant led the deputy on a high-speed
chase. Eventually, defendant wrecked the
truck. The deputy found defendant
walking nearby and arrested him. An
amended information charged defendant with felony
(count 1; Pen. Code, § 666.5, subd. (a)); felony receiving a stolen
vehicle (count 2; Pen. Code, § 496d); felony driving in disregard of
safety of persons while fleeing a peace officer (count 3; Veh. Code,
§ 2800.2); and failure to provide information after a property damage
accident, a misdemeanor (count 4; id.,
§ 20002, subd. (a)). As to each of the
felony counts, the amended information alleged three prior prison term
enhancements (Pen. Code, § 667.5, subd. (b)) and one prior strike (Pen.
Code, §§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)). The jury found defendant not guilty on count
1 and guilty on counts 2 through 4. In a
bifurcated trial to the court sitting
without a jury, the court found the enhancement allegations and the strike
allegation to be true for counts 2 through 4. The court sentenced defendant to an operative
prison sentence of nine years.
The Facts Concerning Shackling.
In the 16
months leading up to the jury trial, defendant filed motions to represent
himself (see Faretta v. California
(1975) 422 U.S. 806) and for new counsel (see People v. Marsden (1970) 2 Cal.3d 118). In addition, proceedings were stopped on
several occasions for examination of defendant’s competency to stand trial and
for treatment to restore competency.
(See Pen. Code, §§ 1368, 1370.)
The case
was set for jury trial beginning March 21, 2011. The matter was called for trial, the court
(Judge Brownlee) heard motions in limine, and the matter was continued to the
next day. The next morning, the court
advised defendant that it had spoken to defense counsel and the prosecutor in
chambers the day before, that the court had received information that defendant
was “agitated about coming to trial,†and that he had threatened various
persons. After informing the court that
he was being harassed at the jail but that he had not threatened the judge or
potential jurors, defendant stated that if a prospective juror “disrespectedâ€
him by having “weird looks†on his face, defendant would not “take that†and
the juror should “get the hell out of here.â€
He continued: “I have no problem
giving fair warning on anything, you know.
And like I said, I don’t raise my hands to do crime myself. I’m a second lieutenant in the New War
Skinhead. Why should I raise my
hand?†The court then advised defendant
that the reason he was shackled to the floor was that the sheriff’s department
believed defendant was adept at escaping from handcuffs. Defendant acknowledged that was one of the
skills he had learned in prison.
Defendant then asked for a new attorney and, after a closed hearing on
that request, the request was denied.
Defense counsel then requested defendant’s competency be
reevaluated. The court suspended
proceedings pending a competency examination
Subsequently,
defendant was given the right to represent himself. When the case was next scheduled for trial on
August 8, 2011, the prosecutor filed a motion in limine to determine whether
defendant was likely to be so disruptive and obstructionist that
self-representation should be precluded.
Attached to this motion were 67 pages of jail incident reports,
including incidents of threats to and assaults on staff, hiding of razor blades
on defendant’s person, injuries from attempts to hide razor blades, and
self-injury. Of particular note, three
of the reports involved threats and attempts to escape from handcuffs,
including one incident where defendant bent the handcuffs and was placed in
side-bar restraints. Also attached to
the motion was a copy of the prosecutor’s letter to the clerk of court
summarizing defendant’s in-court behavior and expressing “great concern†for
himself and other court personnel if defendant was permitted to move freely
while representing himself. At a hearing
on August 8, 2011, the court granted defendant’s request for appointment of
counsel and continued the trial until September 19, 2011.
After a further Penal Code section
1368 motion was denied on October 12, 2011,
the matter was called for trial on October 27, 2011, and the trial court
(Judge Brehmer) addressed the issue whether “some sort of restraints†were
necessary for defendant during the trial.
The court stated it was aware of “a multitude of events that have
transpired involving [defendant] over the past year or so that he’s been in
custody,†most recently an altercation between defendant and the in-court
deputy sheriff at the October 12 hearing.
Defendant responded that the deputy had assaulted him. The court said the deputy “probably thinksâ€
defendant assaulted the deputy. After
receiving assurances from defendant that he understood it was in his own
interest to behave respectfully in front of the jury, the court stated that its
tentative ruling was that “there is a manifest need for keeping the shackles on
and also the cuffs.†The court stated
that defendant would be seated at a table with skirting, so the jury would not
be aware of the restraints. It then
permitted defense counsel to address the matter. Counsel said restraints would be “very prejudicial.†He stated he had seen no behavior requiring
restraints and that it would be “very difficult for [defendant] not to allow
the jury to see the handcuffs, especially if he needs to write me a note or
show me something or point to something in the transcript or the report.†The court stated that it had “incident
reports that I’ve reviewed. The most
recent, I believe, is October 12th. And
they’re about an inch thick total.†The
court stated it would go off the record to “confer with our deputies as to any
additional information they have.†After
the unreported discussion with the deputies, the court stated that it would
“still†require restraints but that “it is important that [defendant be] able
to communicate with his attorney.â€
Accordingly, the court determined that defendant’s writing hand would
not be shackled. The court
concluded: “And we’ll see how things
go. We can revisit this order as we
proceed.†The court then advised the
attorneys that everyone would remain seated when the jury entered, so that
attention would not be drawn to defendant.
Subsequently, the court advised defendant that if he decided to testify
in his own behalf, he would be permitted to take the witness stand when the
jury was out of the courtroom, and that his hands would not be cuffed during
the testimony. Defendant ultimately
decided not to testify.
DISCUSSION
We have set
forth in some detail the circumstances surrounding the issue of shackling
defendant because defendant’s appellate brief focuses on a very narrow portion
of the proceedings, creating a distorted account of the trial court’s
action. He then frames his contentions
on appeal in the light of this distorted account.
Defendant
contends the trial court had two “concerns,†and that defendant’s responses to
the court resolved those concerns in a manner that satisfied the court. Because the court received these assurances
and then conferred with law enforcement personnel off the record before
announcing its final ruling on the issue of restraints, in defendant’s view,
the decision to shackle defendant “creat[ed] the appearance that a judicial
function was impermissibly abdicated to law enforcement†during the
off-the-record consultation with the deputies.
Defendant’s
contention mischaracterizes the record.
The court stated early in the October 27, 2011, proceedings that it had
reviewed an inch-thick stack of jail incident reports. The incident reports attached to the
prosecutor’s August 8, 2011, in limine motion, which apparently comprise a
significant portion of the reports reviewed on October 27, amply support the
court’s tentative decision to require restraints. This decision was announced by the court
prior to the off-the-record discussion with law enforcement personnel. The fact that the in camera discussion did
not provide information that convinced the court not to require defendant be
shackled during trial does not create the appearance that the initial decision,
announced before the in camera discussion, was based in any way on statements
made in camera by law enforcement personnel.
Instead, the court’s decision was made based on evidence in the record
to which defendant did not object.
In this
case, there is no indication in the record that the jury was aware that
defendant was restrained, and the court went to some lengths to prevent the
jury from learning this information.
Accordingly, this case does not involve many of the due process issues
addressed in cases such as Deck v.
Missouri (2005) 544 U.S. 622, 634, and this court’s opinion in
Cal.App.4th 214, 230-231, where the retraints were visible to the jury. Nevertheless, because of the more subtle
psychological effects on a defendant and possible impairment of a defendant’s
ability to communicate with counsel, a case-specific inquiry about escape or
the safety of participants in the trial has long been required for shackling,
even if the restraints are not visible to the jury. (See People
v. Harrington (1871) 42 Cal. 165, 167-168; see also Deck v. Missouri, supra, 544
U.S. at p. 631.) Restraints are
permissible upon a showing of reasonable justification (id. at p. 635) or “manifest need†(People v. Duran (1976) 16 Cal.3d 282, 290-291.) Here, the need for restraints was manifest,
since the court had before it documentation of defendant’s threats to jail
staff, his concealment of razor blades on his person, and his attempts to
injure himself.
It is not
clear from the record whether the court at the October 27, 2011, jury trial had
before it the reporter’s transcript of the March 22, 2011, hearing concerning
the issue of restraints. The transcript
of that hearing is in the record on appeal, however, and it informs our
consideration of the issue of prejudice.
In the course of that hearing, defendant acknowledged that he had become
skilled at escaping from handcuffs and he stated that he would be resentful of
any jurors who disrespected him by having “weird looks†on their face. Defendant threatened any such juror if the
court did not remove the juror from the courtroom, although defendant said he
would not have to raise his own hand against the juror because his gang
subordinates would handle that for him.
The information from the March 22 hearing would be available to the
trial court in any future proceedings in this case, and that information
clearly would justify keeping defendant in restraints while in the
courtroom. Accordingly, even if we found
the record before the court at the October 27 jury trial was somehow inadequate
to justify restraints, any error in requiring restraints was not prejudicial,
since there is no question a fully informed court would reach the result. (See People
v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Poochigian, J. and Franson, J.
