P. v. Bradford

Filed 1/31/08 P. v. Bradford CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A116177

v. (ContraCostaCounty

Super. Ct. No. 050610402)

ROBERT FRANKLIN BRADFORD,

Defendant and Appellant.

______________________________________/

Robert Franklin Bradford appeals from a judgment entered after a jury convicted him of failing to register as a sex offender. (Pen. Code,  290, subd. (a)(1)(A).^[1]) He contends the judgment must be reversed because (1) he could not validly be convicted of a felony offense for his failure to register, (2) his Constitutional rights were violated because the jurors saw him being escorted by court security personnel while in handcuffs, and (3) the court erred when it ordered him to pay the costs of his appointed counsel. We reject these arguments and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 1996, appellant was convicted in federal court of possessing child pornography. He served a federal prison sentence until March 2003 when he was placed on supervised release. At that time, appellant was told he was required to register as a sex offender.

Appellant registered as a sex offender in April 2003, and then again in August 2003. In June 2004, appellant was taken into custody for violating the terms of his release. He served an additional term in federal prison from March to December 2005.

After appellant was released, he intended to move to Oregon. On December 12, 2005, he moved into an extended stay motel in San Ramon while he made the necessary arrangements. Appellant did not register as a sex offender after moving into the motel. On June 26, 2006, he was arrested for failing to register.

Based on these facts, an information was filed charging appellant with one felony count of failing to register as a sex offender. ( 290, subd. (a)(1)(A).) The case was tried to jurors who convicted appellant as charged. After the court sentenced appellant to two years in prison, he filed this appeal.

II. DISCUSSION

A. Whether Appellant Could be Convicted on a Felony Offense

Appellant was convicted on one felony count of failing to register as a sex offender. ( 290, subd. (a)(1)(A).) He does not dispute on appeal that he was obligated to register as the result of his June 1996 conviction in federal court. At trial, appellant stipulated that on June 18, 1996, [he] was convicted of a violation of Title 18 United States Code section 2252(a)(4), Possession of Child Pornography, a felony.^[2]

However, appellant argues that he could not validly be convicted of a felony offense because section 311.11, the California statute that is equivalent to the federal statute that he violated, was a misdemeanor in 1996.^[3] Thus, appellant argues he could at most be convicted of a misdemeanor failing to register under section 290, subdivision (g)(1) that states, Any person who is required to register under this section based on a misdemeanor conviction . . . who willfully violates any requirement of this action is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year.

We are unpersuaded. Appellant stipulated at trial that his prior federal offense was a felony, so this case is governed not by section 290, subdivision (g)(1) but by section 290, subdivision (g)(2) that states, any person who is required to register under this section . . . based on a felony conviction . . . . and willfully violates any requirement of this section is guilty of a felony . . . . Based on appellants stipulation, appellant could be convicted on a felony offense.

This result is fully consistent with prior case law. Our Supreme Court has noted that when the Legislature intends to impose restrictions on the use of out-of-state convictions, it does so clearly. (People v. Lang (1989) 49 Cal.3d 991, 1038.) In the absence of such a clear limitation, a reference in a statute to a prior felony conviction is deemed to include any prior conviction which was a felony under the laws of the convicting jurisdiction. (Id. at p. 1039.) Here appellant was convicted under a statute that makes it a felony for a person to fail to register if that person was required to register based on a felony conviction . . . . ( 290, subd. (g)(2).) Absent any limiting language, we must conclude appellants prior conviction can support a felony offense because it was a felony under the laws of the convicting jurisdiction. (People v. Lang, supra, 49 Cal.3d at p. 1039.)

None of the arguments appellant advances convince us the trial court erred. Appellant relies on section 290, subdivision (a)(2)(D)(i) that describes some of the persons who are obligated to register as a sex offender. As is relevant, it imposes a registration requirement on [a]ny person who . . . has been, or is hereafter convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as one or more of the offenses described in subparagraph (A) . . . . Appellant notes that one of the offenses described in section 290, subdivision (a)(2)(A) is a violation of section 311.11. While section 290, subdivision (a)(2)(D)(i) describes who is required to register, it does not mandate or limit the characteristics of the triggering offenses. Here appellant was convicted in federal court of a felony. It did not become a lesser offense simply because appellant could be required to register under a similar but uncharged California statute.

Appellant also argues that section 667.5, subdivision (f)^[4]and section 667, subdivision (a)^[5]provide guidance here. However, the former section mandates a sentence enhancement of either one or three years for those who have served prior prison terms. The latter provides for a five-year sentence enhancement for those who are convicted of a serious felony who previously have been convicted of a serious felony. Here, we are not dealing with a sentence enhancement, but with a statute that defines the charged crime. We conclude the cited enhancement statutes are not relevant.^[6]

We conclude appellant could validly be convicted of a felony.^[7]

B. Whether Appellant was Prejudiced Because the Jurors Saw Him in Restraints

Defense counsel brought an issue to the courts attention before the jury voir dire even began:

[Y]our Honor you alluded to it when we were just in chambers but now Mr. Bradfords brought it to my attention. I guess now I guess hes being kinda I dont want to use the word paraded but again he walks through the hallway in handcuffs in front of all the jurors. So now this was twice today where he [is] in handcuffs is going right in front of the jury. Theyre looking at him. Hes obviously extremely disturbed by this because I believe that they are not I think everything is supposed to be done to make sure that they dont realize that he was in custody. The fact of seeing him in handcuffs I think is prejudicial towards him.

After consulting with appellant, defense counsel continued his comments:

I dont want to use the word man handled but he says hes being directed and kinda pulled by his elbow in front of the jury and Im assuming thats usually not . . . done in this courthouse.

Counsel asked for a mistrial.

The court declined to grant the mistrial, but it agreed to instruct the jurors that they could not consider or draw any inference from the fact that appellant was in restraints. Accordingly, the court instructed the jurors as follows:

Its a good time to always bring up another principle about an instruction that well be dealing with. I already gave all of you the instruction that the fact that Mr. Bradford has been charged with a crime or brought to trial, none of those things should go into your deliberations nor should you look at them as indicating that he is guilty of these crimes. Its just something you dont even consider.

Theres another issue that sometimes comes up and that is often times people will be transported around the courtroom or court between courtrooms or between different places and, obviously, we always have to have our bailiffs with them and the fact that the bailiffs are with them or possibly that they might have physical restraints, youre not to consider that at all in your deliberations.

Out of the eighteen that we have here, if something like that were to happen, would that could you follow my rule that you dont consider that for any issue?

Everyones nodding their head yes. Okay.

Appellant now contends his Constitutional rights were violated because he was paraded in front of the prospective jurors in handcuffs, which made them believe he was a dangerous criminal and which reminded the jury of his in-custody status . . . .

As a general rule, a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jurys presence unless it is necessary for security purposes. (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1140.) However, public safety requires defendants be restrained as they are transported to and from the courtroom, and such shackling does not invoke a defendants right to be free of restraints during trial. (See People v. Duran (1976) 16 Cal.3d 282, 289.) The customary practice of utilizing physical restraints while transporting a prisoner from place to place, e.g., from jail to courtroom and back, is a matter of common knowledge and generally acknowledged as acceptable for the protection of both the public and defendant. (People v. Jacobs, supra, 210 Cal.App.3d at p. 1141.) Furthermore, it has been generally recognized that brief observations of a defendant in physical restraints by one or more jurors or veniremen either inside or outside the courtroom do not constitute prejudicial error. (Ibid.)

Here, the record indicates that some of the potential jurors may have seen the appellant in restraints while he was outside the courtroom. It is unlikely the jurors were surprised by this fact, and to ensure that appellant suffered no prejudice, the court carefully instructed the jurors that they were not to consider what they had seen for any purpose. We see no error and no possibility for prejudice.

C. Attorney Fee Order

Appellant was represented by appointed counsel, and after appellant was sentenced, the court turned to the issue of whether appellant could afford to reimburse the county for the services he had received. The court fixed the value of counsels legal assistance at at least $500 and ordered appellant to report to the Office of Revenue Collection within 20 working days from the date of his release from jail. There, appellant would be interviewed to determine whether he could pay for all or part of the services that had been provided. If appellant did not agree with the determination made by the Office of Revenue Collection, he would have the right to request a hearing before the court.

Appellant now contends the order requiring [him] to pay [$500] in attorneys fees must be reversed. He contends substantial evidence does not support the conclusion that his attorneys services were worth $500, or that he had the ability to pay for the services he received.

The authority to order a defendant to pay the costs of court appointed counsel is well defined. Subdivision (b) of section 987.8 of the Penal Code . . . provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him. (People v. Flores (2003) 30 Cal.4th 1059, 1061.) Section 987.8, subdivision (b), also states that the court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided. (Flores, supra, at p. 1063.) The latter procedure was followed in this case. The court ordered appellant to appear before the Office of Revenue Collection for an interview. That office would then determine if appellant had the ability to pay. If appellant disagreed with the determination made, appellant would have the right to request a hearing before the court.

With this background, it is clear that appellants argument on appeal is premature. The court did not, as appellant argues, order him to reimburse the county $500. It simply ordered him to appear before an administrative agency that would decide whether he had the ability to pay.^[8] Until appellant is in fact ordered to pay some amount, appellants arguments are not ripe for review. (Cf. In re Cody C. (2004) 121 Cal.App.4th 1297, 1300-1301.)

Appellant seems to argue any order directing him to pay any amount would be invalid because he was sentenced to state prison and under section 987.8, subdivision (g)(2)(B), Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. Because no hearing has been conducted, the trial court made no finding as to whether appellants financial circumstances were unusual. We will not prejudge the result of an administrative procedure that has not yet taken place.

III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Needham, J.

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

^[2] In 1996, when appellant was convicted, 18 United States Code section 2252, stated in part, (a) Any person who [] . . . [] (4) either [] (A) in the special maritime and territorial jurisdiction of the United States . . . knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contains any visual depiction; or [] (B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce . . . if, [] (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and [] (ii) such visual depiction is of such conduct; [] shall be punished as provided in subsection (b) of this section. (See 104 Stats. 4818.)

^[3] At the time of appellants prior conviction, section 311.11 subdivision (a) stated, (a) Every person who knowingly possesses or controls any matter the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct . . . is guilty of a public offense and shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars, ($2,500), or by both the fine and imprisonment. (Stats. 1994, ch. 55,  4, p. 436.)

^[4] Section 667.5, subdivision (f) states, A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison if the defendant served one year or more in prison for the offense in the other jurisdiction.

^[5] Section 667, subdivision (a)(1) states, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.

^[6] Appellant also seems to suggest that the court erred when it treated the multiple counts of his underlying federal conviction as multiple convictions. That is not how we read the record. The court simply stated that to the extent it had the discretion under section 311.11 to find appellants prior conviction a felony or misdemeanor, it would deem that conviction to be a felony given the number of offenses appellant committed.

^[7] In an abundance of caution, we asked the parties to submit briefs discussing whether section 668 might be applicable here. Appellant acknowledged that section does not directly apply and the People agree it has no application under the facts of this case.

^[8] We acknowledge a minor ambiguity in the record. The clerks transcript does state the court ordered appellant to pay $500. However the actual order signed by the court states clearly that appellant was referred to the Office of Revenue Collection so it could determine whether reimbursement was proper. Viewed in context, the courts actual signed order is more likely to reflect its true intent. (Cf. People v. Smith (1983) 33 Cal.3d 596, 599.)