P. v. Packard
Filed 1/23/13 P. v. Packard CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY RAY PACKARD,
Defendant and
Appellant.
F063230
(Fresno
Super. Ct. No. F10904477)
APPEAL from
a judgment of the Superior Court
of
County. Jonathan B.
Conklin, Judge.
William A.
Malloy, 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, Kathleen A. McKenna and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On August 3, 2011, a Fresno
County jury found appellant Anthony
Ray Packard guilty in count 1 of unlawful
taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and in
count 2 of receipt of a stolen motor
vehicle (Pen. Code, § 496d, subd. (a)). After rendition of the verdict, appellant
admitted two prior prison term allegations (Pen. Code, § 667.5, subd.
(b)).
On August 31, 2011, the court denied
appellant probation and sentenced him to a total term of four years in
years for unlawful taking of a vehicle (count 1) and two consecutive one-year
enhancements for the prior prison terms.
On September 1, 2011, appellant filed a
On the
morning of August 29, 2010,
Amanda Bowerman saw her 1996 green Honda Accord being driven away from her home
near Ashlan and Cedar Avenues in Fresno. The car had been locked and parked in the
driveway of her home, and Bowerman had not given anyone permission to use the
vehicle. She contacted the Fresno Police
Department and reported her car stolen.
On the afternoon of August 30,
2010, Fresno Police Officer Maldonado located Bowerman’s car in
front of an apartment complex in the 3300 block of North
Maple Avenue.
Officers from the HEAT (Help Eliminate Auto Theft) task force began a
surveillance of the vehicle.
On the
evening of August 30, Fresno Police Sergeant Timothy Tietjen and California
Department of Insurance Detective Christine Diep, who comprised one unit of the
surveillance team, followed the stolen vehicle.
When the Accord stopped in traffic to make a turn, Sergeant Tietjen and
Detective Diep positioned their vehicle so that Diep could see the occupants of
the Accord. Diep identified Keith McCray
as the driver and appellant as the passenger.
Another
surveillance unit, composed of California Highway Patrol Officers Chad Moran
and Chris Fief, later found the Accord parked and unoccupied in the area of
South Kirk and Grove Avenues. When the
Accord began to leave that location, Officers Moran and Fief followed in an
unmarked truck. The officers eventually
stopped their surveillance of the vehicle but remained in the area. A short time later they saw the Accord turn
into an AM/PM convenience store. Moran
identified appellant as the driver of the Accord at that point in time. The Accord parked at the store, and two occupants
got out of the car and entered the store.
Sergeant Tietjen instructed Moran and Fief to “take them down in the
store.†Moran and Fief entered the store
and handcuffed appellant and McCray.
A search of
appellant’s person yielded a “shaved key,†which Officer Maldonado
characterized as a key altered to fit the ignitions of older-model Honda,
Nissan, Toyota, and Saturn-type vehicles.
Officers determined that appellant’s address was the apartment complex
in the 3300 block of North Maple.
Appellant gave officers three different stories about his acquisition of
the Accord. He first said a friend named
“Fernando†gave him the car at an address on Shields
Avenue. He
next said the Accord was left running with the keys inside at his Maple
Avenue apartment complex. He last said he had gotten the car from a
“white guy†in his apartment complex.
McCray told
officers he did not know the Accord was stolen.
He said he had only been in the car for about 10 minutes, and that
appellant had picked McCray up from his home on South
Kirk Avenue, just south of Grove
Avenue.
McCray testified that he and appellant drove straight from the McCray
home to the AM/PM store. When officers
advised McCray that they had seen him drive the Accord, McCray changed his
story and said appellant picked him up 20 minutes before going to the
store. McCray claimed there was another
black man in the car prior to appellant’s visit to the McCray home. McCray said appellant and the unidentified
black man drove the car around the neighborhood, and that suggested that
officers must have seen the other black male driving the Accord.
An
examination of the interior of the Accord revealed that the plastic molding in
the ignition area was missing, the steering column was exposed, and the
ignition system itself was hanging out by its wires.
THE TRIAL
COURT DID NOT COMMIT PREJUDICIAL ERROR BY DENYING APPELLANT’S MOTION TO BE
PHYSICALLY UNRESTRAINED DURING TRIAL
Appellant
contends the trial court abused its discretion by denying his motion to be
physically unrestrained during trial.
On July 26, 2011, codefendant McCray filed a motion in limine
to allow him to appear at trial without physical restraints (Pen. Code,
§ 688). On that same date,
appellant’s trial counsel joined in McCray’s motion, noting, “I don’t think Mr.
Packard has ever shown any tendency to be disruptive or to try to leave the
courtroom.†The trial court began the
motion hearing by describing the physical restraints placed on appellant and
McCray. The court noted that the
restraints were referred to as tethers and not shackles, and that the cloth
tethers secured each defendant’s feet to the floor through an I-bolt. The court further noted that each defendant
was sitting at a counsel table with a curtain.
The court explained that it had conducted more than 10 trials in that
particular courtroom and had “never once heard a tether or a noise from a
tether.â€
The court went on to explain that
the proceedings before him did not entail visible shackles such as belly chains
and noted that the arms, wrists, and hands of each defendant would be
completely unshackled. The court
described the configuration of the courtroom and noted that two deputies would
be present during the trial, with one deputy seated to the right of the court
and the second seated at the bailiff’s table.
Deputy Sheriff Tim Van Houwelingen
said that McCray posed a “very real and serious security threat to the
officers, court personnel, and the public if appropriate security measures are
not taken.†Deputy Van Houwelingen said
he had researched McCray’s criminal history and noted that McCray had caused a
disturbance in a third floor holding cell awaiting a court appearance in
2010. Deputy Van Houwelingen advised
that he had not researched appellant’s background, and the court acknowledged
that appellant’s counsel had “just joined the motion†in the courtroom. The deputy
suggested: “I think if we …
tether one leg … we can hide the tether well enough from any prospective
juror.â€
The trial judge stepped down from
the bench, entered the gallery, and described his view of the defense table and
the seated defendants for the record.
The judge noted that he was six feet tall, and that he was viewing the
defense table from “every angle.†The
court noted: “[T]he deputies have
volunteered that they will have the right leg unshackled, so only one leg will
be shackled. That is the leg under the
table. [¶] I – frankly, I can’t see anything.… [¶] … [¶]
… I’m ordering that the first two rows be kept empty. The third row, the floor of the courtroom is
not visible.… [¶] [I]n an abundance of caution … when the
jurors come in and are standing up, I will have all the parties including each
attorney remain seated. I will ask you
[defense counsel] to remain seated in front of your client’s leg, so I can’t
imagine the way that the jurors could see your client’s – and then they [the
jurors] will sit down. So once the
jurors are seated, that is not visible.â€
The court made further factual
findings for the record, noting:
“[T]he physical
makeup of this courtroom places the jurors within approximately 15 feet of each
defendant. It places the prosecutor
within ten feet. Each counsel shoulder
to shoulder. The Court within
approximately 12 feet. And perhaps, the
two most vulnerable people in the courtroom based upon physical location,
judicial assistant is to the right of the Court, even closer to the defendants,
and the court reporter is sitting in the well of the courtroom within almost
arm’s reach of the defendants when jury selection is occurring because she has
to wheel her chair in front of the bench.
There is no division at all between the court reporter and the
defendants in custody. [¶] I understand completely the rulings in the
Supreme Court Cases of [People v.]
[People v.] Stevens [(2009) 47 Cal.4th 733],
which appear to address this. I
believe it is a balancing process.… [¶]
… [¶] I fully realize the need for the
defendants to have a fair and impartial jury.
I fully recognize and I fully respect their right to a fair trial. That is why their hands are completely
unshackled. As I said, there are no
belly chains. There are leg tethers
only. That is on one leg of each
defendant. And, once again, if the
defendants choose to testify, then they will be completely unshackled, because
then I recognize the interest shifts.
And if they are testifying on the stand, then the Court does need to
balance while testifying their need to testify from a perception of complete
freedom in the sense they may express themselves completely while testifying,
which both of the cited cases address.
[¶] If that becomes necessary, I
will make additional findings, if appropriate.
If we need to change the custodial situation, at that point when a
defendant is on the stand testifying, the need for him or her to testify
without shackles is a different perspective.â€
The court concluded: “… I will rule that the defendants’ hands and
arms remain completely unshackled. There
would be no visible chains at all. The
tethers in the courtroom do not make noise.
Though the defendants will remain seated. I will order the first two rows of the public
courtroom to remain completely open, so that there will be no jurors seated
there. The closest juror will be
approximately 20 feet away from the defendants.
And, again, while nothing is perfect, I believe that the Court has taken
the necessary steps to ensure that the shackling not be visible to the jurors.â€
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.…’
[Citation.]†(
fn. omitted, overruled on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421; see also People v. Miller (2009) 175 Cal.App.4th 1109, 1118.) “[D]ue process does not permit the use of
visible restraints if the trial court has not taken account of the
circumstances of the particular case.†(
632.) However, it is also well settled
“that the use of physical restraints in the trial court cannot be challenged
for the first time on appeal.†(
583; see also People v. McDaniel
(2008) 159 Cal.App.4th 736, 743.) A
defendant must make an appropriate and timely objection to his shackling. (People
v. Tuilaepa, supra, at p. 583.)
A defendant’s record of violence
does not by itself justify shackling. (
926, 986; People v. Duran (1976) 16
Cal.3d 282, 293; but see People v. Medina
(1995) 11 Cal.4th 694, 730.) “The
decision of a trial court to shackle a defendant will be upheld by a reviewing
court in the absence of an abuse of discretion.
[Citations.] When the record does
not reflect ‘violence or a threat of violence or other nonconforming conduct’
by the defendant, a trial court’s order imposing physical restraints will be
deemed to constitute an abuse of discretion.
[Citations.]†(
at p. 987.) However, courtroom
shackling, even if error, is 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 or her defense. (People
v. Anderson (2001) 25 Cal.4th 543, 596.)
Such is the case here. As respondent notes, the court took
“painstaking efforts†to ensure that jurors, both prospective and empanelled,
did not see or hear the leg tethers on appellant and his codefendant. The court specifically ordered that there be
no physical restraint of appellant and noted there were no shackles or tethers
on appellant’s hands, wrists, arms, or belly.
The court cited the case precedents applicable to shackling of criminal
defendants and engaged in a careful balancing of the need for security in a
courtroom of modest physical dimensions with the constitutional rights of the
appellant and his codefendant. The court
further indicated that appellant would be completely unrestrained if he elected
to testify and noted that it would change the “custodial situation†as needed
during the course of the trial.
Under the foregoing facts and
circumstances, we cannot say error occurred.
Even if error somehow occurred, it was harmless absent any evidence the
jury saw the tethers beneath the defense table.
DISPOSITION
The
judgment is affirmed.
Franson, J.
convicted of similar offenses and has a separate appeal pending before this
court (No. F063988).
