People v. Hernandez

MORENO, J., Concurring and Dissenting.

I agree with the majority that the trial court erred and that the error was harmless. I disagree, however, with the harmless error test the majority employs.

In People v. Stevens (2009) 47 Cal.4th 625, 643 [101 Cal.Rptr.3d 14, 218 P.3d 272] (Stevens), this court held that a trial court’s decision to have a uniformed deputy sheriff escort a defendant to the witness stand and then stay by him as he testifies is reviewed for abuse of discretion. I dissented and concluded that, under decisions of this court as well as those of the United States Supreme Court, “such an unmistakably defendant-focused security arrangement is inherently prejudicial and permissible only if the trial court first identifies an essential case-specific state interest justifying its use.” (Id. at pp. 644—645 (dis. opn. of Moreno, J.).) A little over a year later, we find ourselves reviewing the use of a nearly identical procedure—a uniformed, armed deputy sheriff escorted defendant to the witness stand and then stood behind him as he testified. I hold to my position that such an arrangement is inherently prejudicial; I nonetheless concur in the majority’s judgment that the trial court here erred, even under the less rigorous standard adopted in Stevens.

The majority then concludes the question of whether the error was harmless should be decided under the test articulated in People v. Watson *749(1956) 46 Cal.2d 818, 837 [299 P.2d 243], that is, whether it is reasonably probable defendant would have obtained a more favorable result absent the error. Because I believe the security arrangement was inherently prejudicial, however, I would apply the more stringent standard in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (asking whether an error was harmless beyond a reasonable doubt).

Having only recently laid out the reasons why measures such as the ones employed here are inherently prejudicial (Stevens, supra, 47 Cal.4th at pp. 644—652 (dis. opn. of Moreno, J.)), I will not unduly belabor the point. However, a description of the measures bears brief mention.

A deputy sheriff sat behind defendant throughout the proceedings. When it came time for defendant to testify, the armed, uniformed deputy sheriff escorted defendant to the witness stand and then stood closely behind him as he testified. When defendant finished testifying, the deputy sheriff escorted defendant back to the defense table and sat back down behind defendant. When defendant testified again the next day, the arrangement was repeated. An armed, uniformed deputy sheriff did not escort any other witness.

In Holbrook v. Flynn (1986) 475 U.S. 560 [89 L.Ed.2d 525, 106 S.Ct. 1340] (Holbrook), the high court reviewed for abuse of discretion the stationing of uniformed personnel in the first row of the courtroom’s spectator section. In concluding the arrangement was not inherently prejudicial (unlike the use of shackles or prison clothes), the court explained that, “[w]hile shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant’s special status.” (Id. at p. 569.)

In Stevens, the majority concluded measures such as the ones used here could reasonably have been interpreted by a jury as a routine precaution or used for defendant’s benefit. (Stevens, supra, 47 Cal.4th at pp. 640-641.) I am, to put it mildly, skeptical. When an individual, charged with assault with a deadly weapon, is escorted to the stand by an armed guard, when that armed guard stands behind him as he testifies before escorting him back to the defense table, and when no other witness is similarly escorted, I think the only reasonable interpretation a jury could draw from the use of this protocol *750is that the trial court thinks defendant is “particularly dangerous or culpable” “suggesting] particular official concern or alarm.” (Holbrook, supra, 475 U.S. at p. 569.) For that reason, I continue to believe that the use of such measures is inherently prejudicial, “poses a serious risk to the presumption of innocence and to the right to a fair trial and thus requires a trial court to first find a manifest need for using such measures.” (Stevens, at p. 649 (dis. opn. of Moreno, J.).)

Here, of course, the trial court failed to identify any individualized reason for using an armed, uniformed escort, much less a manifest need. The use of such an inherently prejudicial measure “will often have negative effects, but—like ‘the consequences of compelling a defendant to wear prison clothing’ or of forcing him to stand trial while medicated—those effects ‘cannot be shown from a trial transcript.’ ” (Deck v. Missouri (2005) 544 U.S. 622, 635 [161 L.Ed.2d 953, 125 S.Ct. 2007].) For that reason, when a court employs such a procedure “without adequate justification, ... the defendant need not demonstrate actual prejudice to make out a due process violation.” (Ibid.) The state must prove the error was harmless beyond a reasonable doubt. (Ibid., citing Chapman v. California, supra, 386 U.S. at p. 24.)

I nonetheless conclude the error here was harmless even under the Chapman standard. Defendant’s testimony essentially admitted every element of the charged offense without providing substantial evidence of any affirmative defense. On this basis, I concur in the judgment.

Kennard, J., concurred.

Appellant’s petition for a rehearing was denied April 20, 2011.