P. v.
Filed 4/9/12 P. v. Walker CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JEFFREY EUGENE WALKER, JR.
Defendant and
Appellant.
H036557
(Santa Clara
County
Super. Ct.
No. C1087833)
In this
case we are asked to decide if the trial court deprived appellant Jeffrey
Walker of his right to due process and
equal protection guaranteed by the
Fourteenth Amendment to the United States Constitution when it stationed a
second uniformed deputy in the courtroom during his testimony.
For reasons
that follow, we affirm the judgment.
Facts and Proceedings Below
On October 14, 2010, appellant was
charged by information with second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) The information contained an allegation that
prior to the commission of the offense appellant had been convicted of a
serious felony, robbery, within the meaning of Penal Code sections 667,
subdivision (a) and 1192.7, which was also a violent felony as defined in Penal
Code sections 667.5, subdivision (c) and 1192.7, subdivision (c); and that he
had served a prior prison term for the offense within the meaning of Penal Code
section 667.5, subdivision (b).
Prosecution Evidence
Adduced at Trial
Around 5 p.m. on September 15, 2010, 15-year-old Arnel H., who was a
sophomore in high school, had his iPod Touch in his hand as he was walking on Piedmont
Avenue. He
saw appellant sitting on a seat at a bus stop; appellant was with a girl. Arnel described the girl as Latina
with dark hair. Appellant and the girl
were laughing. Arnel had passed the bus
stop when appellant said " 'hey, hold on.' " Arnel stopped and turned around. As he did so, appellant asked Arnel what he
had in his hand. Arnel told him he had
an iPod.
" 'don't worry, I'm not going to steal it' " as he forcefully grabbed
the iPod. Appellant put the iPod in the
pocket of his pants. Appellant told
Arnel, " 'leave me alone and get out of here.' " Arnel grabbed appellant's arm and politely
told appellant to give back the iPod.
Appellant pushed Arnel away and told him "get out of
here." Appellant grabbed Arnel's
clothing in the area of his chest. Arnel
did the same to appellant. They
struggled and fell into a bush; appellant was on top of Arnel. Arnel screamed for help and placed his foot
on appellant's chest so appellant could not hit him. Appellant let go of Arnel and started
running. Arnel asked the girl that had
been with appellant if she knew anything, but she "just didn't say
anything."
Arnel
started running after appellant.
Appellant turned around and punched Arnel hard on the left side of his
temple. Appellant ran again but Arnel
did not pursue him because a car with someone Arnel knew from school
arrived. Arnel got into the car. As he did so he saw appellant running back to
the bus stop and get on to a bus.
The car
that Arnel was in followed the bus to another stop. In the meantime, Arnel had called his
father. They both arrived at the bus
stop at the same time. They got on to
the bus and saw appellant sitting in the first row; he was with the girl he had
been with earlier.
Arnel's
father told the bus driver he needed to speak to someone on the bus. Arnel followed his father on to the bus and
pointed to appellant as the person who robbed him. When Arnel's father confronted appellant he
denied he had Arnel's iPod; the girl said she did not know appellant.
A
surveillance tape from the inside the bus was played for the jury. A transcript of the audio from the tape
showed that before Arnel and his father got on to the bus, the girl asked
appellant, "What happened"
However, his response was inaudible, but the girl laughed. She asked appellant, "Where we getting
off at" Appellant said,
"We're getting off right here (inaudible)." Then, appellant said, "This is for you
ok." After the girl said
"Huh" appellant repeated, "This is for you ok." The girl said "What" and appellant
responded "That."
The bus
driver called the police. The police
searched appellant, but Arnel's father did not see them search the girl. He thought that she had gone by the time the
police arrived.
Seventeen-year-old
Janet W. testified that in mid-September she called the police because a
"kid . . .[was] saying that . . . he got his iPod stolen and was hit in
the head." Janet identified Arnel
as the person she saw that day. She
identified appellant as the person who was standing close to Arnel. Janet was inside her mother's car just
leaving the school parking lot. Janet
heard appellant say, " 'I didn't steal it.' " Arnel came to the car and asked for help; he
was "freaking out." Appellant
left and walked toward the bus stop.
Arnel got in to the car; Janet, her mother and Arnel followed
appellant. Janet saw appellant with a girl
who was wearing a red shirt and had long black hair; the girl was at the bus
stop. Appellant and the girl got on to
the bus together.
Janet and
her mother followed the bus and Janet called the police. Arnel wanted to get out of the car and get on
to the bus. As soon as the bus stopped
the girl got off the bus and tried to walk away. Janet's mother followed her. Janet saw the police talk to appellant, but
not the girl.
Janet's
mother testified that while waiting for her daughter on December 15th she saw
an altercation. She saw two
"children" struggling. One
appeared to be Chinese or "Phillipine" and one was "dark." It looked as if one of them was grabbing for
something. When her daughter came out of
school she got in the car. As she was
leaving the parking lot the "Philippine boy" came over and said
"He hit my head and he took my iPod away"; the boy asked for
help. The boy got in to her car and her
daughter called the police. The other
boy approached her car and said something to the effect of "It wasn't that
way." This boy went to the bus
stop. Janet's mother remembered he was
with a girl with dark hair and a red shirt and they were talking; when the bus
came along, they got on to the bus together.
Janet's mother identified a photograph of the girl and identified
appellant as the person who was with her.
Janet's
mother followed the bus for about a block before it stopped. Janet and Arnel got out of the car and on to
the bus. The girl who had been with
appellant got off the bus and Janet's mother followed her. By this time Arnel's father had arrived. When Janet's mother caught up with the girl
she confronted her, but did not get out of her car. When Janet's mother confronted the girl about
giving back the iPod, the girl put on a sweater she had been carrying and
walked away. Janet's mother talked to
the police and told them what she had seen.
Gurpal
Nijjar testified that she was across the street in her car when she witnessed
an altercation near the high school. She
saw a young Asian man screaming and heard him say that someone had hit him in
the head and had stolen his iPod. The
Asian male was asking for help and was very upset. The Asian male was yelling at a dark-skinned
male who had lunged at him. Nijjar said
that it looked as if the dark skinned male was punching the Asian male. As he shouted for help, the Asian male chased
the dark-skinned male past Nijjar's car.
The dark-skinned male stopped across the street from Nijjar's car and
turned around. The Asian male continued
to accuse the dark-skinned male of stealing his iPod and hitting him. The dark-skinned male took an iPod out of his
pocket and said, "Fine. You can
have it back. I'll give it back to
you. Here. Here.
Take it." Nijjar could see
an iPod in his hand. The dark-skinned
male appeared to be really scared.
Nijjar saw
a brown car pull up with two women in it.
The Asian male ran up to the car and asked the occupants for help saying
that the dark-skinned man stole his iPod.
She heard the dark-skinned man say, "This is my iPod. I didn't hit him in the head. He hit me in the head." The Asian male got into the car. At this point, Nijjar noticed a female
standing by the passenger side door of her car.
The dark-skinned male walked up to her.
She heard the female ask what had happened and the male mumbled
something. The female said, "Don't
worry about it. Just give . . . it to
me." The dark-skinned male handed
her the iPod and they walked away.
Nijjar described the female as having dark hair and wearing a red
T-shirt with a white shirt over it. The
female and the dark-skinned male walked toward the bus stop.
In court,
Nijjar identified appellant as the male she had seen with the iPod and
identified a photograph of the female she had seen with appellant. Nijjar was completely sure of her
identification. When Nijjar gave a
statement to the police on the day of the incident appellant was already
handcuffed at the bus stop.
Officer
Raya testified that he took a recorded statement from Arnel on the day of the
incident. Arnel demonstrated to him how
appellant grabbed the iPod from him.
Arnel had several scratches on his forearms and complained of pain in
his right temple. Officer Raya could see
some slight swelling above Arnel's right temple. Officer Raya took several photographs of
scratches on appellant's arms and hands.
Appellant's t-shirt did not have any shoe prints on it, but there was
some shrubbery hanging from it.
Officer
Raya released appellant's property to appellant's sister. The property included a backpack, baseball
cap, cellular telephone and bus pass.
Defense Evidence
Appellant
testified in his own defense that on September 15th, 2010, he was walking to
the bus stop when he heard some screaming; he saw two African American individuals
wearing black clothing run past him. He
turned a corner and saw Arnel getting up from the bushes. Appellant said he was about an arm's length
away from Arnel when Arnel pointed to appellant and said, "You robbed
me." Appellant said that he replied,
"Man, you're tripping." Arnel
was screaming for help. Appellant
described him as hysterical and angry.
Appellant saw a woman sitting at the bus stop, but he did not know her
name although he had seen her at parties.
Appellant
said that he walked away quickly from Arnel, but Arnel followed him still
screaming. Arnel was swearing and said
that appellant had taken his iPod.
Appellant said that he turned around to confront Arnel and tell him he
did not know what Arnel was talking about, but he could not get Arnel to
listen. He saw a car pull up with two
women in it. Appellant testified that
had been trying to call for help on his sister's cellular telephone; he walked
up to the car. He told the women he had
a phone, which looked similar to an iPod. He asked the women if they could get Arnel
away from him. Appellant walked away
from the car, but Arnel ran after him and grabbed his arm. Appellant turned around and hit Arnel on the
side of the head. Appellant said that
Arnel went back to the car and he went to the bus stop. Appellant admitted that when Arnel and his
father confronted him on the bus he lied to them when he said he did not touch
Arnel.
Appellant
said that he got on to the bus, as did the woman who had been sitting at the
bus stop. He did not see Arnel at this
point in time. Appellant was worried
that Arnel might call the police and he might face an assault charge so he gave
some marijuana he was carrying to the woman on the bus. He thought he would not be caught with it if
the police searched him. At the next bus
stop, Arnel got on to the bus with his father.
Appellant said that when they confronted him about taking the iPod, he
said he did not have it and they could search him. He opened his backpack and showed them his
pockets; he gave then his home telephone number. Appellant got off the bus sometime after
Arnel and his father got off because the bus driver had said he was not going
to go anywhere until the police arrived.
Appellant said that while waiting for the police, he tried to talk to
Arnel and his father. When the police
arrived they handcuffed him and pat searched him. Appellant did not know how he got the
scratches on his arms, but he thought it might have been when Arnel grabbed
him. Appellant admitted that he had been
convicted of a felony involving theft in 2009.
Before
appellant testified, defense counsel told the court that appellant had decided
to take the witness stand. The court
stated that it understood, but an issue had arisen as to how to handle security. Deputy Edward Yearman, a risk assessment
deputy who was present in court, told the court the following: "Generally - - in each case we evaluate
the security risk that the defendant presents or any other witness might
present to the case. When in-custody
witnesses, in-custody defendants choose to testify, it has been not just a
policy, but, kind of, a review of each case to station deputies in different
portions of the courtroom. [¶] When they are on the witness stand, we like
to have them adjacent to the defendant or in-custody witness to help provide
security. We try not to escort them
through in front of a jury or anything like that. We always request the court to take a
break. The jury's excused from the
courtroom. Defendant or in-custody witness
is at the witness stand. When court
resumes, the jury comes in, they stand up at the witness stand. Court resumes. When their testimony is finished, again we
ask for a short break so that they can be back at the defense table once the
jury returns so they don't see any type of escourting [sic] or any type of human shackling, as it's been referred to in
court cases. [¶] We're not looking for any additional physical
restraints when they're testifying. I
think that would be prejudicial to the defendant."
The court
asked Deputy Yearman what he recommended in this case after talking with the
regular courtroom deputy. Deputy Yearman
responded, "An additional uniformed deputy sheriff." The court noted that it was its understanding
that the additional deputy would be seated in the corner by the exit door in
the front of the courtroom to the side of the witness box, and the regular
deputy would remain seated at the regular deputy station. Deputy Yearman confirmed that the court's
understanding was correct.
The court
asked Deputy Yearman if appellant would be able to take the stand with a deputy
already seated or would he have to take the stand before the jury came back
in. Deputy Yearman replied, "It
would probably be - - we usually have them already seated before the jury comes
back, so that the jury doesn't see him moving through the courtroom. That way there's no concerns that the deputy
stationed up by the witness stand, it's not as if he's directing the defendant
to the stand or anything along those lines." The court asked if Deputy Yearman had any
objection to having appellant take the stand as long as the deputy was already
seated. Deputy Yearman confirmed that he
would not.
The court
asked the regular courtroom deputy to mention some "specific issues [she]
had with the defendant in terms of following the rules of the Court during the
trial." Deputy Catalano noted that
defendant "stood up . . . prior to being directed to do so on a break. That could have possibly been a
misunderstanding. But after further
discussion with him regarding communication with people in the audience, he's
been directed not to do that and has still continued to turn around give head
movements to say, hello, I believe, to a friend that was in court yesterday . .
. as well as a sister of his, Angel, after I had indicated to him not to
communicate with people out in the audience.
[¶] So there ha[ve] been specific
times with me directing him not to do something where he has disregarded the
direction."
The court asked
defense counsel to comment on the "proposed issue." Defense counsel acknowledged that any time
there is a criminal case there are security concerns. However, he told the court that in his
experience over the past two decades of trying cases, his clients had walked to
the witness stand without being preceded by a deputy. Defense counsel asked the court if the court
were inclined to allow that in this case.
The court confirmed that it would; the court stated that appellant would
be allowed to "walk up and to be sworn like any other witness to stand in
front of the court reporter's desk, be sworn and then take the witness
stand."
Defense
counsel expressed his appreciation for the court's ruling and continued,
"And I also have no objection to the presence of an extra deputy in the
courtroom, because I do know that there's an exit door about 6 to 8 feet from
where the witness stand is and the court has voiced legitimate concerns
regarding that. [¶] The problem I have is that during the trial
we've just had one bailiff, one deputy present.
And, all of a sudden when my client takes the stand, the jury's going to
see the presence of a second uniformed deputy sitting in very close proximity
to where he's testifying. And I think
that can raise an inference in the jury's mind that Mr. Walker, perhaps, poses
a security risk or is [a] flight risk.
And, of course, that inference is very prejudicial. [¶] I
realize there are cases under California law that gives the court discretion to
have extra security when a defendant testifies.
But I think there's also federal due process issues about a client's
right to a fair trial and we should do everything in our power not to prejudice
the defendant." Defense counsel
confirmed that appellant had acknowledged his grandmother and his sister and
conceded that appellant "was going outside the rules when he turned his
head" and told his grandmother that he loved her. However, defense counsel did not think that
these incidents suggested that appellant was a flight risk or a security risk
that justified having a deputy seated close to him. Defense counsel continued, "I was asking
Deputy Yearman if it's possible we might have somebody in civilian clothing. But, apparently, there's no one
available. I think that might be a happy
medium. But I would object to . . . a
uniformed deputy sitting in close proximity to my client, just for the
record."
Deputy
Yearman told the court that placing a deputy in plain clothes inside the well
of the courtroom "might cause more interest from the jury than a uniform
officer who are used to seeing deputies in and throughout the building in and
throughout the courtroom, suddenly placing a plainclothes there. [¶]
Plainclothes are usually for when we place them elsewhere in the
courtroom. It just looks like another
citizen or family member sitting in the audience. [¶]
Why I dress in plainclothes is to pretty much blend in more with an
audience. I usually don't sit inside the
well area to provide security or to monitor proceedings."
Deputy
Catalano suggested that the second deputy could be in court from the beginning
of the court session through the remainder of the day, so it would not seem as
if he or she were there just because the defendant was testifying. The court asked if the deputy could be there
during closing argument and Deputy Catalano confirmed that he or she could be
there.
Thereafter,
the court stated that it appreciated defense counsel's argument, but went on to
say, "I am going to find, based on the particulars of this case and the
particulars of the defendant, including the allegations in this case and the
prior conviction of the defendant and the allegation of a prior contact, that
it is appropriate in this case to have the additional precaution of having a
second uniformed deputy seated in the very corner of the front of the courtroom
before we bring in the jury. [¶] And then, as I understand, he can remain
there the entire day, including in the afternoon during closings when Mr.
Walker is not testifying. [¶] Mr. Walker will be allowed to be called by
[defense counsel], to stand up from counsel table and to step forward and to be
sworn, as every other witness has been.
To stand by the court reporter to be sworn and, then, take the seat in
the witness stand unaided. [¶] But the additional security is warranted, not
only by the information that has been provided by the defendant's prior history
. . . but, in addition, by the fact that there is an exit door that has to
remain open for fire reasons at the front of the courtroom. [¶] In
addition, the witness box is right next to the court bench. There is only a swinging door that does not
cover the whole area between the bench and the witness box. There is a gap and only a swinging door. In light of all that, it is appropriate to
have the additional security. [¶] The fact that the uniform officer will be
seated in the corner originally and will be here the full day would be unobtrusive. As the deputy mentioned, we have had deputies
coming in and out of the courtroom and have had second deputies at times with
Deputy Catalano in the courtroom."
Following a
recess, defense counsel called
appellant to the stand.
Discussion
Due Process
that the trial court violated his right to due process and equal protection
guaranteed by the Fourteenth Amendment to the United States Constitution when
it stationed a second uniformed deputy in the courtroom during his testimony.
"A trial court has broad power
to maintain courtroom security and orderly proceedings." (People v. Hayes (1999) 21 Cal.4th
1211, 1269; accord, People v. Stevens (2009) 47
Cal.4th 625, 632 (Stevens).) On the other hand, "certain security
measures may burden the right to a fair trial.
In particular, to require the defendant to appear before the jury under
restraint may impair that right, for example by leading
the jury to infer he is a violent person and by tending to dispel the presumption
of innocence. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th
900, 995 (Jenkins).)
and the California Supreme Court have distinguished "between security
measures, such as shackling, that reflect on defendant's culpability or violent
propensities, and other, more neutral precautions." (Jenkins,
citing Holbrook v. Flynn (1986) 475 U.S. 560, 567-568 (
31 Cal.4th 197, 224 [maintaining distinction between shackling and the
deployment of security personnel in the courtroom]; Stevens,
supra, 47 Cal.4th at p. 634 [distinguishing between physical restraints
placed on the defendant's person and most other security practices].)
Under high court
authority, both federal and state, " 'the use of identifiable security
guards in the courtroom during a criminal trial is not inherently prejudicial,'
in large part because such a presence is seen by jurors as ordinary and
expected and because of the many nonprejudicial inferences to be drawn from the
presence of such security personnel."
(Jenkins, supra, 22 Cal.4th at p. 998; see also, e.g.,
of a courtroom deputy next to a testifying defendant is not an inherently
prejudicial practice].) In
observed that "after a nationwide search," it had not found
that has been
reversed under Holbrook
based on the
security in the
courtroom."
Nevertheless, the
court may not defer decisionmaking authority to law enforcement officers, but
must exercise its own discretion to determine whether a given security measure
is appropriate on a case-by-case basis."
(Stevens, supra, 47
Cal.4th at p. 642.)
Appellant contends that the trial
court did not exercise its discretion to determine if factors specific to him
required additional security measures.
Respectfully, we point out that the record does not support this
claim.
As we read the record, the trial
court did not defer to a routine or standard security practice without regard
to case-specific concerns. Further, the
court took great pains to ensure that a procedure could be used that would
attract a minimum amount of attention to the extra security—the second deputy
would be seated in the courtroom the entire day and not just when appellant
testified, and appellant was allowed to walk from counsel table to the witness
stand without the deputy escorting him.
Although the court agreed that a
uniformed deputy was more appropriate than a plainclothes deputy that does not
mean that the court deferred to a sheriff's department policy without making a
case specific finding. The courtroom deputy
had voiced concerns about appellant's failure to follow the rules, which in
essence amounted to a disregard for the courtroom security. The court found that based on the charges
appellant faced, his prior history, which involved violence, his prior conviction,
which involved violence, and prior contacts, the stationing of a second deputy
was called for in a courtroom that had an unlocked exit door close to the
witness stand and little between the judge on the bench and appellant while he
was testifying.
Notably, in this case, the court was
aware that appellant had a prior conviction for robbery and that another count
of robbery and one count of burglary were dismissed in the case that led to the
robbery conviction.
name="_ftnref3" title="">[3] In
discussing in limine motions, the court was informed of the conduct underlying
the case. In one robbery, appellant and
two other individuals approached the victim, who was on a bicycle, and blocked
his path. Appellant held a knife pointed
at the victim and demanded his iPhone.
In the other robbery, appellant and another individual approached the
victim, who was playing basketball at the time.
Appellant asked to see the victim's iPod. When the victim hesitated, appellant quickly
opened a knife and brandished it at the victim; appellant told the victim he
had five seconds to hand it over or be stabbed.
Accordingly, the court was aware that appellant had a violent past; the
court took that information into consideration when making the case specific
assessment that extra security was necessary when appellant testified, which
the court was entitled to do. (
643.)
In short, the trial court came to
its own conclusion about stationing a second deputy in the front of the
courtroom and did not abdicate control to
law enforcement. Since trial court decisions regarding
courtroom security are reviewed for abuse of discretion and because the
exercise of that discretion must be informed by the particular circumstances of
a given case (Stevens, supra, at
pp. 643-644), which the record shows happened in this case, we reject
appellant's claim that the court violated his right to due process.
Equal
Protection
Alternatively, appellant claims the
Sheriff's Department "policy" of requiring additional security measures
for in-custody defendants violated his right to equal protection under the
law. Respondent argues that because
there was no objection below on this ground, no evidence was taken and no
findings were made. Thus, respondent
contends that the argument is based on an incomplete and inadequate record and
this court should treat the claim as forfeited.
Whether a constitutional violation
can be asserted for the first time on appeal depends partly on whether the
alleged error is primarily legal or factual.
When a constitutional claim may readily be resolved as a pure question
of law on the basis of undisputed facts and does not depend on the development
of new facts, appellate courts will reach the merits and not find the claim
forfeited. (People v. Delacy (2011)
192 Cal.App.4th 1481, 1493; In re Spencer S. (2009) 176 Cal.App.4th
1315, 1323; In re Sheena K. (2007) 40 Cal.4th 875, 880–889.)
"The equal protection
guarantees of the Fourteenth Amendment
and the California Constitution are substantially equivalent and analyzed in
similar fashion." (People v.
Leng (1999) 71 Cal.App.4th 1, 11.)
First, we ask whether the two classes are similarly situated with
respect to the purpose of the law in question, but are treated
differently. (Cooley v. Superior
Court (2002) 29 Cal.4th 228, 253 (Cooley).) If groups are similarly situated but treated
differently, the state must then provide a rational justification for the
disparity. (People v. Hofsheier
(2006) 37 Cal.4th 1185, 1200–1201.)
Thus, " '[t]he first
prerequisite to a meritorious claim under the equal protection clause is a
showing that the state has adopted a classification that affects two or more
manner.' [Citations.]" (Cooley,
supra,
29 Cal.4th at p. 253.)
Appellant argues that in custody and
out of custody defendants are similarly situated, but are treated
differently. The problem with
appellant's equal protection argument is that it is based on a premise for
which there is no support in the record.
That is that the Sheriff's department has a policy of stationing a
second deputy for in custody testifying defendants and not for out of custody
testifying defendants. We point out that
appellant's claim that the Sheriff's department treats out of custody
defendants differently is based on pure speculation and supposition.
More importantly, as noted
cannot employ a routine policy because each case must be evaluated on a case
specific basis. (Stevens, supra, 47
Cal.4th at p. 642.) Thus, here, the
presence of the second deputy in the courtroom was not pursuant to any policy
of the Sheriff's department, but was pursuant to the court's determination that
because of the charges appellant faced, his prior history, which involved
violence, his prior conviction, which involved violence, and prior contacts
between appellant and the regular courtroom deputy, increased security was
warranted.
In essence, appellant cannot raise
an equal protection argument because he was not aggrieved by any
"policy" in this case.
"One who seeks to raise a constitutional question must show that
his rights are affected injuriously by the [policy] which he attacks and that
he is actually aggrieved by its operation." (People v. Black (1941) 45 Cal.App.2d
87, 96.) The argument advanced in
support of the equal protection claim is based entirely upon a hypothetical
situation not involved in this case.
Finally, we find that if any error
was committed, when viewed under the Chapman v. California standard (Chapman
v. California (1967) 386 U.S. 18, 24) any purported error in stationing the
second deputy in the courtroom was harmless beyond a reasonable doubt. (See People
v. Taylor (1982) 31 Cal.3d 488, 499
[applying the test for federal constitutional error to an in custody defendant
who was required to wear jail clothing where there was the possibility of an
equal protection violation].)
Contrary to appellant's suggestion,
the evidence of appellant's guilt was overwhelming. Given the unanimous eye witness
identifications that confirmed Arnel's account of his interactions with
appellant, the testimony from Nijjar that she heard the girl from the bus stop
ask appellant what had happened and appellant mumbled something and handed her
the iPod as they walked away, and the videotape from the bus that showed that
appellant did know the girl in the red shirt, appellant's account of the
incident stretched the boundaries of credibility.
Since we have addressed appellant's
equal protection argument we need not address appellant's contention that he
received ineffective assistance of counsel based on counsel's failure to raise
an equal protection objection.
Disposition
The
judgment is affirmed.
______________________________
ELIA,
J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
PREMO, J.
Arnel referred to the device as
an iTouch whereas other witnesses referred to is as an iPod. To avoid confusion we will refer to the
device as an iPod.
name="_ftn2" title="">[2] In Holbrook v. Flynn, supra,
475 U.S. 560, 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. The court recognized that jurors' initial
reaction at the outset of a trial is not dispositive as the jurors may not be
aware of the impact the practice will have on their attitude toward the accused. Therefore, the court must determine only
whether the security practice or practices presented an "unacceptable
risk" that impermissible factors will come into play. (Id. at p. 570.) The court should look
"at the scene presented to jurors and determine whether what they saw was
so inherently prejudicial as to pose an unacceptable threat to defendant's
right to a fair trial; if the challenged practice is not found inherently
prejudicial and if the defendant fails to show actual prejudice, the inquiry is
over." (Id. at p. 572.)
