P. v.
Filed 6/17/13 P. v. Taylor CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE NATHAN TAYLOR,
Defendant and Appellant.
C071283
(Super. Ct. No. 10F05622)
Defendant Joe Taylor was convicted of possessing a
sharpened instrument in a state prison in violation of Penal Code
section 4502, subdivision (a). Before
trial, the trial court precluded defendant from
defense. Also, at trial the court
permitted defendant to be shackled in the presence of the jury. On appeal, defendant contends the trial court
erred in: (1) refusing to allow him to
present evidence and refusing to instruct the jury on the necessity defense;
and (2) permitting him to be shackled in the presence of the jury. We disagree with defendant on both points and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant parts of the proceedings will be addressed
in their respective sections below; however, we briefly summarize the facts
here. In May 2010, defendant was being
held in California State Prison, at Folsom.
At that time, Lucio Cuevas was doing “on-the-job training†as a
correctional officer cadet in the prison.
Cuevas came into contact with defendant while assisting
other officers in patting down inmates for weapons on their way back from a
small exercise area. While conducting a
patdown search of defendant, Officer Cuevas “felt a cylindrical object [of]
approximately four to five inches.â€
After defendant told him the object “was nothing,†defendant was
cell.
During an unclothed body search, a process that involves
“instruct[ing] the inmate to remove all clothing†and inspecting each piece,
defendant unrolled the waistband string of his shorts where Cuevas saw a
four-to-five-inch-long piece of melted, twisted plastic; it had a handle and
its tip was sharpened.
Defendant was charged with possessing a sharpened
instrument in a state prison. The jury
found him guilty and the court sentenced him to a determinate term of one year
in state prison and an additional 25 year to life due to prior strike
convictions. Defendant timely
appealed.
DISCUSSION
I
The Necessity
Defense
Defendant’s first argument is that the trial court
violated his constitutional right to
present a defense when it “refused to allow evidence and refused to instruct
the jury on the defense of necessity†because defendant’s “offer of proof . . .
support[ed] a necessity defense . . . .â€
The People disagree. We conclude
that the trial court properly denied defendant’s request because as a
proof did not support an instruction on the necessity defense.
Before trial, the prosecution moved to exclude all
evidence “regarding the reason for the defendant’s possession of the
weapon.†In response, defendant made a
motion to admit a defense of necessity.
Defendant offered to prove the following facts. A Department of Corrections and Rehabilitations
(department) memorandum issued five days before the
incident stated since “ ‘Black and Southern Hispanic inmates pose a significant
threat to each other’ †those two
populations were being segregated.
According to defendant, “Southern Hispanics at
that time posed a ‘significant threat’ to all [B]lack inmates.†“As a result, the [B]lack and [S]outhern
Hispanic inmates were being taken onto the yard alone, with no other inmates
present.â€
That day, several Black inmates saw the sharpened instrument
on the ground of the exercise yard.
According to defendant, because correctional officers “do not always
search the yard after inmates [leave] the [exercise] yard and before another
group . . . comes,†the instrument would have been accessible to Southern
Hispanic and other inmates when they came into the exercise yard. Further, there were several inmates in the
exercise yard at that time and an inmate puts himself at serious risk of harm
when other inmates see him turn a weapon over to a guard. Defendant picked up the sharpened instrument
and put it in his pants, “where he knew it would be found.†Thus, defendant argued before trial that
because he would have been exposed to severe physical injury had he alerted
guards to the presence of the sharpened instrument in front of other inmates,
he had no choice but to place the sharpened instrument in his waistband to
avert harm to himself and other Black inmates.
The prosecution argued the evidence showed that
“[defendant] was not in immediate danger†and offered “merely conjecture about
possible future events.†Since the
memorandum relied upon by defendant stated that Southern Hispanic inmates would
not be on the exercise yard until 9:00 a.m. the next day, and the incident
happened at 11:30 a.m. the day before, the future harm was too speculative to
constitute an emergency for the purposes of the necessity defense.
The trial court found that “[a]s a matter of law
[defendant] does not fall within th[e] class of persons for whom the necessity
defense could possibly apply.†The court was correct.
The necessity defense has not been codified, but is
recognized as a defense to certain crimes, including some crimes committed by
prison inmates. (See
583, 586; see also 1 Wiktin & Epstein, Cal. Criminal Law (4th ed. 2012)
Defenses, § 62, p. 501 [“California case law has recognized that the defense of
necessity is available under limited circumstancesâ€].) “To justify an instruction on the defense of
necessity, there must be evidence sufficient to establish that defendant
violated the law (1) to prevent a significant evil, (2) with no adequate
alternative, (3) without creating a greater danger than the one avoided, (4)
with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he did not
substantially contribute to the emergency.â€
(People v. Pepper (1996) 41
Cal.App.4th 1029, 1035.)
“[A] well-established central element [to the defense of
necessity] involves the emergency nature of the situation . . . .†(People
v. Patrick (1981) 126 Cal.App.3d 952, 960.)
Indeed, “[t]he necessity defense is very limited and . . . . [i]t
excuses criminal conduct if it is justified by a need to avoid an
955, 971, italics added.)
“The standard for evaluating the sufficiency of the
evidentiary foundation [for the defense] is whether a reasonable jury,
accepting all the evidence as true, could find the defendant’s actions
justified by necessity. . . .
[S]atisfying the required foundational burden through an offer of proof
rather than on the witness stand makes no difference to the standard of review
on appeal, which is ‘whether there is evidence deserving of consideration from
which reasonable jurors could conclude the . . . elements [of the
necessity defense] have been satisfied.’ â€
(People v. Trippet (1997) 56 Cal.App.4th 1532, 1539.) Even assuming the jurors would take as true
the facts in a defendant’s offer of proof, a trial court need not give a
necessity instruction where the evidence is insufficient as a matter of
law. (See People v. Slack (1989) 210 Cal.App.3d 937, 943-944.)
Defendant
suggests that the emergency situation, or imminent threat, that required him to
pick up the sharpened instrument was the possibility that a Southern Hispanic
inmate would come into possession of the sharpened instrument and use it to
severely injure him or another Black inmate.
Defendant’s argument is without merit.
According to our Supreme Court in
71, 74, “a prisoner might be justified in seizing [a] prohibited weapon[] in
order to protect himself if he were confronted with an emergency situation and
his life were endangered.†Since Purta,
our courts have elaborated on the propriety of an instruction on the necessity
defense when an inmate possesses a sharpened instrument in a secured
facility. (See, e.g.,
Cal.App.3d 418 [finding the necessity defense inapplicable to a charge that
defendant was in possession of a deadly weapon in a county jail];
assault with a deadly weapon in a prison]; People
v. Saavedra (2007) 156 Cal.App.4th 561 [noting in dicta that the necessity
defense was applicable to a charge of being in possession of a weapon in
prison].)
court rejected a necessity defense for possessing a sharpened instrument in
a jail where the defendant was found by an officer in the Los Angeles County
jail “making a knife from the railing of his bed . . . .†(People
v. Velasquez, supra, 158
Cal.App.3d at pp. 419-422.) The
defendant claimed that he had told the officer that four men had assaulted him
earlier, but the officer told him to go back to his cell. (Id. at
p. 420.)
While the
defendant in Velasquez was charged
under section 4574,
title="">[2]
the court discussed the history of both sections 4574 and 4502. (People
v. Velasquez, supra, 158
Cal.App.3d at p. 420.) “The purpose of
these statutes is to protect inmates and officers from assaults with dangerous
weapons perpetrated by armed prisoners. . . .
The purpose of the statutes would be frustrated if prisoners were allowed
to arm themselves in proclaimed or actual fear of anticipated attack by other
inmates. Accordingly, it is
well-established that arming for self-defense against a future anticipated
attack is no defense to the crime.†(
While the Velasquez court
recognized that “self-defense might justify violation of the statute where the
prisoner was under imminent mortal attack, had no opportunity to seek
protection of the authorities, and temporarily seized a prohibited weapon in
order to save his life,†the court concluded that was not the case before it
because “[the defendant] was not under attack when found in possession of the
deadly weapon.†(Id. at p. 421.)
The
reasoning in Velasquez applies with
equal force here. The imminent threat
defendant claims he was trying to avoid by picking up the sharpened instrument
was the possibility that a Southern Hispanic inmate would pick up the sharpened
instrument in the exercise yard and use it against
defendant or another Black inmate.
Because, however, the Southern Hispanic inmates would not be in the
exercise yard until the next day at 9:00 a.m., the earliest a Southern Hispanic could have used the weapon against
defendant or another Black inmate was sometime the next day. This hypothetical future threat posed by a
Southern Hispanic inmate using the sharpened instrument was too remote as a
matter of law to support a necessity defense.
(See People v. Velasquez,
Defendant tries to analogize this case to
Saavedra, however, is
distinguishable. In Saavedra, after the defendant was attacked by two other inmates, he
was found to be in possession of a sharpened instrument. (Id.
at pp. 565-566.) In upholding the trial
court’s failure to instruct on duress,
the court noted in dicta that “the
facts supported a necessity defense based on the theory that Saavedra seized
the weapon to prevent a more aggravated attack against him, which outweighed
the harm sought to be prevented by forbidding prison inmates from possessing
weapons.†(Id. at p. 567.)
an imminent threat to the inmate’s life without time to notify the
authorities. (See ibid.; People v. Velasquez,
supra, 158 Cal.App.3d at pp. 420-421.) This case is inapposite because neither
defendant, nor anyone else, was being attacked when defendant picked up the
sharpened instrument.
Finally,
defendant argues it is “not the trial court’s function to pass upon the merits
of a proposed defense,†nevertheless a trial court does not err in rejecting a
necessity instruction where the evidence is insufficient as a matter of
law. (See People v. Slack, supra,
210 Cal.App.3d at pp. 943-944.)
Accordingly, we find that the trial court properly refused to instruct
the jury and admit evidence on the necessity defense.
II
Defendant’s
second argument is that the trial court abused its discretion in permitting him
to be shackled in the presence of the jury.
According to defendant, because “the attempted showing of manifest need
fell woefully short of what is necessary to visibly restrain a defendant in
front of his jury,†and “because it cannot be said beyond a reasonable doubt
that the outcome of the trial would have been different†in the absence of
shackles, defendant’s conviction must be reversed. We disagree.
Prior to
trial, the trial court conducted a security hearing. The court explained that “generally [a]
defendant cannot be physically restrained in a courtroom in the jury’s presence
except upon a showing of manifest need,†and what the standard was for manifest
need. After the court explained that
standard, Michael Perry, a sergeant with the department testified.
Sergeant
Perry suggested that because defendant was faced with an increased prison
sentence, he might pose extra security risks in the trial court. Defendant was already sentenced to a term of
25 years to life and if convicted for this violation stood to face “an
additional consecutive 25 [years] to life sentence.â€
Officer
Perry also discussed department policy which “dictates that all high-risk
inmates shall be restrained with a waist chain with cuffs attached and leg
restraints at all times . . . . [¶] unless [a judge] . . . order[s] [otherwise].†Inmates are deemed high-security risks by a
placement score. Normally “[a]n in mate
is designated as a level four or maximum security [inmate] when their placement
score reaches 52 points.†Defendant,
however, had a “level four or maximum security inmate . . . score of 126
points†primarily as a result of his “disciplinary history.â€
Officer
Perry disclosed the following disciplinary history: “February 2010, producing of dangerous
contraband. Found guilty. [¶]
February 2007, possession of alcohol.
Finding Guilty. [¶] January 2006, battery on a peace
officer. Finding guilty. [¶]
August, 2004, mutual combat.
Finding Guilty. [¶] December, 2003, obstructing a peace officer
in the performance of his duties.
Finding Guilty. [¶] November 2002, inciting others to force and
violence. Finding guilty.†As a result, Officer Perry believed that
“[defendant] possesse[d] a significant threat to the safety of the proceedings
based on his convictions and his in prison behavior.â€
Defendant’s
counsel argued that because “the last incident of alleged violence by
[defendant]†took place in “January of 2006, six years ago,†and the charge
here is not an “incident of violence . . . it’s highly prejudicial to have him
restrained in front of the jury.â€
Moreover, counsel noted, that the 2006 incident only involved
defendant’s shoulder hitting a correctional officer.
In response,
Officer Perry again cited the department’s procedures and stated that the
department believed defendant needed to be physically restrained during trial
because of his past prison history. The
trial court countered that “Of course you know the law says the policy alone
doesn’t suffice, it has to be based on acts.â€
The trial
court ruled that restraints were appropriate, stating as follows: “I find that there’s sufficient demonstrated
need for the restraints in this case.
Significant in my mind is that the defendant is currently a state prisoner
and is facing significant charges. His
past history does not give me confidence that some disruption is not
possible. I can’t say how likely it
would be.†Although defendant had
behaved in court so far, “given the nature of [defendant’s] charges[,] . . .
the circumstances of this trial, the Court’s evidentiary rulings which I’m sure
frustrate him, I’m sure [he] will not [be] in a better frame of mind.â€
We review the trial court’s decision to permit
defendant to be shackled in the presence of the jury for abuse of
discretion. (See People v. Hernandez (2011) 51 Cal.4th 733, 741.)
“[V]isible
physical restraints like handcuffs or leg irons may erode the presumption of
innocence because they suggest to the jury that the defendant is a dangerous
person who must be separated from the rest of the community.†(People
v. Hernandez, supra, 51 Cal.4th
at p. 742.) As a result, a trial court
must decide whether there is a particularized, manifest need for the physical
restraints on a case-by-case basis. (See
People v. Duran (1976) 16 Cal.3d 282,
290-291; see also Deck v. Missouri (2005)
544 U.S. 622, 629 [161 L.Ed.2d 953, 963] [“[T]he Fifth and Fourteenth
Amendments prohibit the use of physical restraints visible to the jury absent a
trial court determination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trialâ€].)
In making
this determination the trial court’s assessment is not restricted to the
defendant’s courtroom behavior, but the court may base its decision on a “
‘showing of unruliness, an announced intention to escape, or “[e]vidence of any
nonconforming conduct or planned nonconforming conduct which disrupts or would
disrupt the judicial process if unrestrained. . . .†’ †(People
v. Hill (1998) 17 Cal.4th 800, 841.)
“[W]hen the imposition of restraints is to be based upon conduct of the
defendant that occurred outside the presence of the court, sufficient evidence
of that conduct must be presented on the record so that the court may make its
own determination of the nature and seriousness of the conduct and whether
there is a manifest need for such restraints; the court may not simply rely
upon the judgment of law enforcement or court security officers or the
unsubstantiated comments of others.†(People
v. Mar (2002) 28 Cal.4th 1201, 1221.)
A “trial court may not delegate to law enforcement personnel the
decision whether to shackle a defendant.â€
(People v. Seaton (2001) 26
Cal.4th 598, 651.)
Relying on
1109, 1114, defendant argues that “ ‘the mere fact that [he wa]s a prison
inmate, standing alone, does not justify the use of physical restraints.’
†Defendant’s reliance on
court was correct that a “ ‘court cannot adopt a general policy of imposing
such restraints upon prison inmates charged with new offenses unless there is a
showing of necessity on the record’ †(
evidence from Officer Perry and explained why it was allowing physical
restraints.
Further,
defendant relies on People v. Ervine (2009)
47 Cal.4th 745 to argue that the trial court abused its discretion because
“after noting [defendant’s] minor rules infractions in prison and good behavior
in court . . . . [it ordered] [defendant] shackled based upon facts which did
not rise to the level of those which would legally allow for shackling in front
of a jury.†Defendant’s reliance on
unpersuasive.
In
hearing after it admittedly erred in allowing the inmate to be restrained in
the presence of the jury and found that after “review[ing] [the] defendant’s
criminal history, which contained only some instances of resisting an officer
in ‘the rather distant past’ and two ‘relatively slight’ jail disciplinary
violations . . . [there existed] no basis to continue using the
belly chain and ordered it removed.†(
However, on appeal, the People conceded that “the trial court erred in
delegating to the sheriff’s department the decision whether to shackle
defendant and in allowing defendant to be shackled during a portion of voir
dire without a showing of manifest necessity.â€
(Id. at p. 773.) Defendant misconstrues Ervine because the court there did not hold that a temporally
remote instance of resisting an officer and two slight prison rules violations
was insufficient to justify a manifest need for physical restraints in every
situation.
In
conclusion, the trial court here held a hearing and elicited evidence from the
department as to defendant’s behavior while he was incarcerated and invited the
opinions of defense counsel. The trial
court made an independent determination as opposed to relying on the
department’s general policy of physically restraining high-risk inmates. Specifically, the record shows that the trial
court: (1) the took testimony from the
department; (2) stated the legal standard for manifest need; (3) explained that
the law says merely relying on a general policy of physical restraints for
inmates is not appropriate; and (4) gave reasons as to why the circumstances
justified a manifest need for physical restraints.
Further,
defendant conveniently ignores the evidence of his out-of-court behavior
presented at the security hearing.
Officer Perry testified that from 2002 to 2006, defendant had six
reported rules violations while incarcerated, including: (1) battery on a police officer; (2)
obstructing a police officer; and (3) engaging in mutual combat. Moreover, defendant also ignores the fact
that he was facing the prospect of an additional concurrent 25-years-to-life
sentence. Given the evidence of the
three incidences of violent, nonconforming conduct while he was incarcerated,
we cannot say the trial court abused its discretion -- i.e., acted outside the
bounds of reason (see People v.
Catlin (2001) 26 Cal.4th 81, 122) -- in finding there was a manifest
need. The trial court did not err in
permitting defendant to be physically restrained in the presence of the jury.
DISPOSITION
The judgment
is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
name="_ftn1" title="">[1]
All further section references
are to the Penal Code. Section 4502,
subdivision (a), provides in relevant part that “Every person who, while at or
confined in any penal institution . . . possesses or carries upon his or her
person . . . any dirk or dagger or sharp instrument . . . is guilty of a felony
. . . .â€
name="_ftn2" title="">[2]
Section 4574, subdivision (a),
provides in relevant part as follows: “any person who, while lawfully confined in a jail or
county road camp possesses therein any firearm, deadly weapon, explosive, tear
gas or tear gas weapon, is guilty of a felony and punishable by imprisonment
pursuant to subdivision (h) of Section 1170 for two, three, or four years.â€
