P. v. Perez

Filed 10/27/08 P. v. Perez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Modified and affirmed.

Cynthia A. Thomas, 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, Senior Assistant Attorney General, Stephanie C. Brenan and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Gustavo Perez appeals from the judgment entered following his jury conviction of five counts of robbery, one count of attempted robbery, and one count of assault by means likely to produce great bodily injury. (Pen. Code, 211, 664/211, 245, subd. (a)(1).)[1] The jury also found that he used a knife during the commission of one of the robberies and personally inflicted great bodily injury on the victim of the attempted robbery and assault. ( 12022, subd. (b), 12022.7, subd. (a).) Following a bench trial, the court found he had suffered four prior felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), and 667, subdivision (a). Defendant claims that the courts use of an additional uniformed bailiff during the trial violated his right to due process and a fair trial.

We modify the judgment, order the abstract corrected, and, as modified, affirm.

FACTS

As defendants sole contention on appeal concerns the trial courts decision regarding a security issue, we briefly summarize the facts.

On October 19, 2004, defendant and an accomplice entered Blanca Rodriguezs beauty salon. She and Reyna Contreras were alone in the salon. Defendants accomplice struck Contreras and demanded money. Contreras had her wallet taken, which contained her house keys and $30 or $40. Defendant removed Rodriguezs jewelry and took money from a tip jar and a drawer. He took Rodriguezs car keys, and demanded to know where her car was located. The men left when Rodriguez said her husband had the vehicle.

On October 28, 2004, Cathy Martinez and Rosa Gallegos were inside the Magic Beauty Salon. Defendant came in and asked if he could get a shave. After being told no, he produced a knife and started demanding money. He took money, rings, a camera, a wallet, and a cellular telephone from Martinez and earrings from Gallegos.

On November 1, 2004, Sujey Zaragosa was working at Luna de Miel, a lingerie and novelty store. Defendant came in and looked at the merchandise. He left, only to return a few minutes later. He asked to see an item, and Zaragosa took it out of the package to show it to him. At that point, defendant announced, in Spanish, This is a robbery. He struck Zaragosa in the face with his fist and ordered her to get on the ground. He took her jewelry and her purse, which contained car keys, money, and a cellular telephone. Defendant also took money from the cash register.

On November 17, 2004, Connie Diaz was in the beauty shop where she worked. Defendant came in and said he needed a haircut. When he entered the area where the work stations were located, he demanded money from Diaz. When she said she had none, he struck her in the eye with his fist. As a result of the blow, Diaz stayed in a hospital for three days and suffered blurred vision that was unabated at the time of trial over two years later.

DISCUSSION

I. The Security in the Courtroom

Defendant contends the additional security measures utilized during the trial, which consisted of the presence of one additional uniformed bailiff in the courtroom, violated his right to due process and a fair trial. We examine the discussion of the issue in the trial court.

On February 5, 2007, the court began jury selection late in the afternoon. After the prospective jurors were excused for the day, defendants counsel addressed the court. She stated she had an issue about the extra security. She said, there are many jurors who have served on criminal juries and many who know theres only one bailiff per courtroom, and Im afraid its going to have an impact I think it may prejudice the jury to see two uniformed people viewing Mr. Perez. As the court is aware, he has not been disruptive at all sitting in custody . . . . Counsel told the court she also had an issue with having someone standing close to Mr. Perez, a uniformed officer, during the trial. It makes him look dangerous.

The court responded that it understood the extra security was necessary because deputies had found defendant in possession of a shank. Counsel contended that since defendant was searched every day, he presented no danger. The court promised to address the matter the following morning.

The next day, out of the presence of the prospective jurors, the court revisited the security issue. It began by stating, The court is aware that the defendant has an additional charge filed against him because he brought a rather large shank to court in one of the proceedings prior to being put in my courtroom. So I dont know exactly when that happened, but it was explained by counsel and by the bailiff that the defendant had brought a shank into the court, that this shank was a rather large shank, not a small one, but actually a large shank, and that as a result of that the defendant poses a security risk for the bailiffs.

The court recognized it had a duty to ensure that defendant received a fair trial. It concluded that defendants conduct did not justify shackling him, and decided to allow the presence of an additional deputy in the courtroom as an appropriate less restrictive alternative that would not signal to the jury that the defendant is, in fact, a danger. The court noted that it had offered to voir dire the jury about an additional deputy in the courtroom.[2]

Counsel stated that she had made her record the previous day and thanked the court for its consideration of the issue. The subject was not broached again.

Defendant contends the trial court abused its discretion by allowing an additional bailiff to remain in the courtroom. While he acknowledges he had been previously found with a large shank in another courtroom, he asserts since that time [he] was thoroughly searched every day before entering the courtroom, so the danger of his carrying a shank into the courtroom was no longer an issue. He argues there was no evidence that he posed a risk which warranted increased security. We disagree.

A trial court has broad power to maintain courtroom security and orderly proceedings. (People v. Hayes (1999) 21 Cal.4th 1211, 1269.) A courts decision regarding security measures in the courtroom is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 253.)

There were facts that justified the trial courts decision to employ an additional bailiff. Defendant had managed to smuggle a large shank into a courtroom. The record reveals that at the time of the present trial, defendant was serving a sentence of 105 years to life that had been imposed in a prior case. Although the parties do not enlighten us, we consider it highly likely that defendant was in the custody of the Los Angeles Sheriffs Department, transported to court, and searched on the day the shank was discovered. Defendant does not contend otherwise. Given defendants success in arming himself with a lethal weapon, the court would have been derelict if it had failed to take some precaution. Even if the threat of defendant possessing a weapon had been decreased by the daily searches, the court did not abuse its discretion by ordering increased security measures. Clearly any person brazen enough to bring a weapon into a courtroom is a greater risk to disrupt the orderly proceedings of the court.

Defendant contends that the additional bailiff posed such an unacceptable threat to [his] right to a fair trial, prejudice is presumed and no showing of actual prejudice is necessary. He is mistaken. Unlike the shackling of an accused, the use of additional security personnel in a courtroom is not inherently prejudicial. (Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 (Holbrook); People v. Jenkins (2000) 22 Cal.4th 900, 998.) In Holbrook, 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. (People v. Hayes, supra, 21 Cal.4th at p. 1269.)

We are not convinced that the use of an additional bailiff was so inherently prejudicial that it impermissibly affected defendants right to a fair trial. The record provides very little description of the security measure employed in the courtroom. We know only that defense counsel complained a uniformed officer was standing close to defendant. We reject defendants contention that the mere presence of a single extra bailiff infected the fairness of [his] trial. Nor has defendant established actual prejudice. He points to nothing that leads us to conclude the verdict was affected by the jurors view of two bailiffs, as opposed to one. [I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over. (Holbrook, supra, 475 U.S. at p. 572.)

II. The Court Security Fee

The court imposed a single $20 court security fee pursuant to section 1465.8. The Attorney General correctly points out the court erred. Section 1465.8, subdivision (a)(1) provides that a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. As defendant suffered seven convictions, the court should have imposed a $140 security fee.[3]

III. The Sentence

Although not raised by either party, we note the clerks minute order and the abstract of judgment reflect that the court ordered the sentence imposed in this case to be served concurrently with the sentence in case VA086244. However, the reporters transcript states the court ordered the sentence in this case to be consecutive to that imposed in case VA086244.[4]

As a general rule, where there is a conflict between the reporters transcript and the clerks minutes, the record will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. (People v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216.) Here, there is no question the minute order and the abstract of judgment incorrectly reflect the courts clearly stated oral pronouncement. Moreover, as the trial court correctly observed, because defendant was sentenced pursuant to section 1170.12, it was required to impose consecutive sentences for those crimes which were not committed on the same occasion, and not arising from the same set of operative facts. ( 1170.12, subd. (a)(6); People v. Hendrix (1997) 16 Cal.4th 508, 512-513.)

We order the abstract of judgment corrected to reflect the sentence imposed by the court.

DISPOSITION

The trial court is directed to correct the minute order and the abstract of judgment by imposing a court security fee of $20 for each of defendants seven convictions and ordering the sentence in this case and case number VA086244 to be served consecutively.

The court is directed to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] All further statutory references are to the Penal Code.

[2] Jury selection was not made part of the record, so we do not know if the jurors were questioned on the subject.

[3] We disagree with the Attorney Generals position that a fee cannot be imposed on the count for which the trial court stayed sentence pursuant to section 654. We agree with the court in People v. Schoeb (2005) 132 Cal.App.4th 861, 865, that section 1465.8 unambiguously requires a fee to be imposed for each of defendants convictions. The requirement is unaltered by a courts sentencing decision.

[4] We sent a letter to counsel requesting that they address the discrepancy, and both agreed the abstract of judgment should be corrected to reflect the courts oral pronouncement of sentence.