People v. Duran

CLARK, J.

I dissent. The trial judge did not abuse his discretion in denying the motion to remove defendant’s restraints.

The appropriate standard for reviewing the trial court’s exercise of its discretion in such matters was reiterated in People v. Morris (1971) 20 Cal.App.3d 659 [ 97 Cal.Rptr. 817 ], “[T]he vagaries of each individual case, the variation in security facilities in different jurisdictions, the conduct and attitude of a defendant and/or his counsel, and a myriad of other factors all play a part in the decision of the trial judge as to what action must be taken with respect to restraints upon the defendant. The trial judge is in the very best position to make that judgment. We should adhere to the basic presumption that the trial judge has faithfully *297 performed his duty until and unless the defendant shows without equivocation that there was no basis whatever for the restraint employed.” {Id., at p. 666; see People v. Coleman (1973) 32 Cal.App.3d 853, 859 [ 108 Cal.Rptr. 573 ]; People v. Earl (1973) 29 Cal.App.3d 894, 900-901 [ 105 Cal.Rptr. 831 ]; People v. Pena (1972) 25 Cal.App.3d 414, 424-427 [ 101 Cal.Rptr. 804 ].)

Defendant made no such showing here. To the contrary, the threat to courtroom security inherent in defendant’s propensity to violence was amply demonstrated: first, by his prior conviction for first degree robbery (Pen. Code, §§ 211, 211a); second, by the magistrate’s finding in the present case that probable cause existed to believe defendant guilty of assault with a deadly weapon while serving a life sentence (Pen. Code, § 4500) and possession of a dirk or dagger while confined in prison (Pen. Code, § 4502). Moreover, the security of the courtroom was further jeopardized by the attendance of numerous inmate witnesses. To find abuse of discretion in such circumstances is to grossly overvalue the defendant’s rights at the expense of the safety of everyone else in the courtroom. (Cf. People v. Harris (1975) 15 Cal.3d 384, 392-393 [ 124 Cal.Rptr. 536 , 540 P.2d 632 ] (Clark, J., dissenting).)

Assuming arguendo that the trial judge may have erred in declining to remove defendant’s shackles, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (See Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637 [ 40 L.Ed.2d 431 , 94 S.Ct. 1868 ]; Cupp v. Naughten (1973) 414 U.S. 141 [ 38 L.Ed.2d 368 , 94 S.Ct. 396 ].) The jury knew from both the nature of the charges and from the testimony that defendant was a state prison inmate. Therefore, the shackles not disclosing this information, where lies the prejudice? (See People v. Ross (1967) 67 Cal.2d 64, 72 [ 60 Cal.Rptr. 254 , 429 P.2d 606 ]; People v. Coleman, supra, 32 Cal.App.3d at p. 859; People v. Pena, supra, 25 Cal.App.3d at p. 426 .) Nor did defendant’s shackles single him out; the inmate witnesses called by the People, including the victim, were also shackled. (See People v. Pena, supra, 25 Cal.App.3d at. p. 427.) Finally, the majority offer no evidence, either empirical or anecdotal, to support their assumption that restraints prejudice the jury against the defendant. Is not the opposite more likely the case? That is, by appealing to the American instinct in *298 favor of the apparent underdog, are not restraints likely to create sympathy for the defendant among the jurors? 1

The other errors alleged were also harmless. Defendant sought to impeach inmate Gallegos on the ground that he was to receive parole in exchange for his testimony. However, defendant’s offer of proof did not support this charge; if anything, it tended to prove the contrary. 2 Therefore, any error in foreclosing this line of inquiry appears harmless.

The remaining error alleged is sustaining of a hearsay objection to defendant’s proposed explanation of the circumstances giving rise to the state of mind in which he fled from the scene of the stabbing. Defendant contends that, although guiltless, he fled because he was afraid to become “involved” in the incident. As the majority point out, defendant was permitted to so testify, but was prevented from explaining the circumstances giving rise to his state of mind. According to the majority, defendant offered to testify that when he was punished for prior prison rule infractions he had been warned by correctional officers that he could not afford to become involved in further incidents or investigations. {Ante, p. 294.) Had defendant actually offered to so testify, exclusion of the testimony might have been prejudicial. However, defendant did not attribute the warnings to correctional officers; he attributed them to no one. 3 The trial judge accurately characterized the proposed testimony as the repetition of “[pjrison gossip, grapevine talk.” As such, it would have added no weight to the testimony defendant did give as to his state of mind.

There is no evidence that defendant’s possession of the scissor blade was “antecedent and separate” from the stabbing. Therefore, imposition of sentence on both counts constituted double punishment within the meaning of section 654 of the Penal Code. (See People v. Venegas (1970) 10 Cal.App.3d 814, 821 [ 89 Cal.Rptr. 103 ].) Accordingly, the punishment provided for violation of section 4500 of the Penal Code being greater than that provided for violation of section 4502, execution of sentence for *299 the latter offense should be stayed. (See People v. Beamon (1973) 8 Cal.3d 625, 640 [105 Ca.Rptr. 681, 504 P.2d 905 ].)

I would affirm the judgment in other respects.

McComb, J., concurred.

This hypothesis would account for the fact that when restraints are recommended it is never the prosecutor, but rather the defendant’s custodian, who makes the recommendation.

Defendant’s offer of proof was that the following report had been prepared concerning Gallegos’ availability as a witness: “Gallegos, eyewitness, will not testify at the prelim, but probably will at the trial if he has his expected date. (Received parole date of 4/7/74.)”

Defendant’s offer of proof consisted in the following testimony: “I was told several times that people coming from [Vacaville] going to other prisons would have to walk a straight line. They cannot afford to become involved in any type of investigation or any type of incident because they will be watching real closely and things like this sort.”