Dissenting. — Defendant’s daughter accused him of sexually assaulting her and giving her drugs; defendant denied doing either. Their testimony constituted the only direct evidence of what actually occurred. Thus, as Justice Ruvolo aptly noted in his dissent below, “The jury’s decision necessarily turned on whether it believed the version of events testified to by the victim, or by the [defendant] — a classic ‘she said/he said’ trial.” “[T]he evidence presented at trial, although consistent with guilt, was equivocal and inconclusive. On the one hand, if the victim were believed, then appellant would be doubtlessly found guilty of the charges. On the other hand, if appellant were believed, a not guilty verdict was inevitable. [][]... Therefore, the state of the evidence rendered it critical for the trial judge not to allow the demeanor, and thus the credibility, of either of the two key witnesses to be enhanced or diminished unfairly.”
In this case, we consider whether defendant’s rights were violated when the trial court permitted a uniformed deputy sheriff to escort defendant to the witness stand and then sit next to him as he testified. This procedure was not followed for any other witness. In affirming the Court of Appeal’s judgment that the trial court did not abuse its discretion, the majority reasons the security arrangement in this case was legally indistinguishable from the routine deployment of security personnel in a courtroom. I disagree.
As with the use of physical restraints (Deck v. Missouri (2005) 544 U.S. 622 [161 L.Ed.2d 953, 125 S.Ct. 2007] (Deck)) or prison attire (Estelle v. Williams (1976) 425 U.S. 501 [48 L.Ed.2d 126, 96 S.Ct. 1691] (Estelle)) in front of a jury, the stationing of a uniformed officer next to a defendant as he or she testifies is the kind of government action that constitutes an “unmistakable indication[] of the need to separate a defendant from the community at large” *645(Holbrook v. Flynn (1986) 475 U.S. 560, 569 [89 L.Ed.2d 525, 106 S.Ct. 1340] (Holbrook)) and “is likely to lead the jurors to infer that [a defendant] is a violent person disposed to commit crimes of the type alleged. [Citations.]” (People v. Duran (1976) 16 Cal.3d 282, 290 [127 Cal.Rptr. 618, 545 P.2d 1322] (Duran).) Consequently, I would hold that 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. As the majority acknowledges, no such justification (such as, for example, defendant posing a security or flight risk) was identified in this case in support of the trial court’s decision to permit the security measure. I would thus reverse the judgment of the Court of Appeal and remand the matter for a new trial. I therefore dissent.
I.
As the majority relates the facts of this case, I do not repeat them, and instead focus on the security arrangement at issue here.
Throughout the trial, while defendant was at the defense table, an Alameda County deputy sheriff sat behind him. During a recess on the day defendant testified, defense counsel indicated that the trial court and the courtroom deputies had informed him that, pursuant to policy, a deputy sheriff would accompany defendant to the witness stand and sit next to him as he testified. Defense counsel objected to the arrangement, arguing that stationing a deputy next to defendant on the stand would be tantamount to a “human shackle” which, absent a determination of good cause specific to the trial, would violate both the federal and state Constitutions. Defense counsel further pointed out that there was no evidence suggesting defendant posed a safety or flight risk.
The trial court overruled the objection. In explaining its ruling, the trial court equated a deputy sitting next to defendant as he testified with a deputy sitting behind defendant while at the defense table; the court stated the former would “be no more prejudicial” than the latter. The trial court also indicated the “Sheriff’s Department policy of having a deputy at the stand with an in-custody [defendant] for safety purposes, or even to prevent escape, is certainly reasonable . . . .” Finally, the trial court commented that a previous juror had expressed discomfort “with a police officer in full uniform with a weapon sitting at the witness stand. And I don’t want the jury in any way to be distracted by those concerns . . . -”1 A uniformed deputy *646sheriff2 subsequently escorted3 defendant to the witness stand and sat immediately next to him as he testified.
On appeal, a divided Court of Appeal affirmed defendant’s conviction. The majority concluded the security arrangement was comparable to the routine stationing of security personnel in a courtroom and is therefore reviewed for abuse of discretion. On the other hand, the dissent reasoned that having a deputy escort defendant to the stand and then, in the jury’s direct view, sit next to defendant as he testified implicates the same concerns cited in federal and state shackling cases; thus, adoption of the security measures should have been preceded by a finding of a case-specific state interest.
II.
I begin by briefly discussing the well-established law governing, on the one hand, inherently prejudicial measures such as the use of prison attire or physical restraints during a criminal trial and, on the other hand, the general deployment of courtroom security personnel.
A.
The United States Supreme Court has closely scrutinized courtroom practices that risk undermining the fairness of the criminal factfinding process by diluting the presumption of innocence. For example, in Estelle, supra, 425 U.S. at pages 504 to 505, the court held that compelling a defendant to wear prison garb in front of the jury could infect the jury’s judgment and posed an *647“unacceptable risk ... of impermissible factors coming into play. [Citation.]” The court noted that the use of prison attire could “ ‘have a significant effect on the jury’s feelings . . .’ [citation]” while serving no essential state policy. (Id. at p. 505.) The court also noted that a policy requiring only in-custody defendants to wear prison attire, such as the one at issue in that case, posed a potential violation of equal protection principles.4 (Estelle, at pp. 505-506.)
Similarly, both the high court and this court have closely examined the use of physical restraints visible to the jury during a criminal trial, requiring a trial court to first determine that their use was justified by a state interest specific to the trial. (Deck, supra, 544 U.S. at p. 629; Duran, supra, 16 Cal.3d at pp. 290-291.) This rule has long been in effect in this state. (See People v. Harrington (1871) 42 Cal. 165, 168 [finding prejudicial error where physical restraints were used without a finding of “evident necessity”].) One reason for the “[j]udicial hostility” to physical restraints is that, as with prison attire, the use of such measures “undermines the presumption of innocence and the related fairness of the factfinding process. [Citation.] It suggests to the jury that the justice system itself sees a ‘need to separate a defendant from the community at large.’ [Citations.]” (Deck, at pp. 630-631; see Duran, at p. 290 [A defendant’s “appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged. [Citations.]”].)
Despite these concerns, like the high court, we have nevertheless acknowledged that there are occasions when trial judges may be warranted in restraining defendants, for example, when a defendant poses a safety or flight risk or when a defendant disrupts the proceedings or otherwise engages in nonconforming behavior. (Deck, supra, 544 U.S. at p. 632; Duran, supra, 16 Cal.3d at p. 291.) However, we have emphasized that the need for using physical restraints must appear as a matter of record and that the restraints should be as unobtrusive as possible, although as effective as necessary under the circumstance. (Duran, at p. 291.)
B.
In contrast to the scrutiny applied to inherently prejudicial practices, the United States Supreme Court and this court have been more deferential to the general deployment of security personnel in a courtroom, concluding that *648such measures do not require a trial court to make a finding of manifest need, but rather are reviewed for abuse of discretion. (Holbrook, supra, 475 U.S. at pp. 568-569; People v. Marks (2003) 31 Cal.4th 197, 224 [2 Cal.Rptr.3d 252, 72 P.3d 1222] (Marks); Duran, supra, 16 Cal.3d at p. 291, fn. 8.)
In Holbrook, uniformed security personnel were seated in the first row of the courtroom’s spectator section. (Holbrook, supra, 475 U.S. at pp. 568-569.) The high court concluded the arrangement did not violate the defendant’s federal constitutional rights because such a deployment is not “the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial.” (Ibid.) 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 Marks, the trial court stationed a deputy sheriff next to and slightly behind Juror No. 7, “four or five feet” away from the witness stand, as the defendant testified. (Marks, supra, 31 Cal.4th at p. 223 & fn. 5.) Before doing so, the trial court noted the defendant had assaulted an attorney in court and a deputy sheriff during the case, had violated court orders, and had been removed from the courtroom for being verbally disruptive during the trial.5 (31 Cal.4th at p. 223.) The defendant appealed, arguing the trial court was required to identify a manifest need justifying the security arrangement. (Ibid.) We rejected the claim, concluding that stationing security personnel to monitor a defendant does not require a showing of manifest need. (Id. at pp. 223-224.) Echoing Holbrook, we reasoned “courtroom monitoring by security personnel does not necessarily create the prejudice created by shackling.” (Ibid.) Unlike the use of restraints, we concluded, “ ‘it is entirely possible that jurors will not infer anything at all from the presence of the guards ... so long as their numbers or weaponry do not suggest particular official concern or alarm.’ ([Holbrook, supra, 475 U.S.] at p. 569.)” (Marks, at p. 224.)
*649HI.
Turning to the security measure at issue here — a uniformed deputy sheriff escorting defendant to the witness stand and then sitting, in the jury’s view, next to him as he testified — I conclude the arrangement is unlike the general deployment of security personnel in a courtroom, but instead, as with the use of physical restraints or prison attire, 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. In so concluding, the critical question, as explained by the United States Supreme Court, is how a security measure will be perceived by the jury. (Holbrook, supra, 475 U.S. at p. 569.) Will an arrangement be interpreted as being motivated by the trial court’s specific concerns about the defendant, like the use of physical restraints, or will it be viewed as a routine part of the courtroom drama, like having a bailiff stand near the court clerk?
Contrary to the majority, I believe there can be no reasonable doubt that the security measure employed here suggested “particular official concern or alarm” (Holbrook, supra, 475 U.S. at p. 569) about defendant and invited consideration of impermissible factors (Estelle, supra, 425 U.S. at p. 505). Having a uniformed officer escort a defendant to the stand and then sit right next to him or her as he or she testifies suggests to the jury that the trial court has determined a need for security personnel to interpose themselves between the defendant and the jury box lest the defendant attempt to attack the jurors or the judge. (See Deck, supra, 544 U.S. at p. 630.) Jurors would also likely infer that the trial court believed the defendant was disposed to commit the type of crimes with which he or she was charged. (See Duran, supra, 16 Cal.3d at p. 290.) The fact that a defendant, and only the defendant, is accompanied by a uniformed guard as he or she testifies cannot help but “ ‘have a significant effect on the jury’s feelings’ ” (Estelle, at p. 505) and leave the impression that there is a “ ‘need to separate a defendant from the community at large’ ”6 (Deck, at pp. 630-631).
The security arrangement at issue stands in stark contrast to the general deployment of security personnel approved of in Holbrook. As the United States Supreme Court explained, a jury could reasonably infer that having *650officers sit in the first row of the spectator section is not motivated by specific concerns about the defendant, but is instead intended “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.” (Holbrook, supra, 475 U.S. at p. 569.) The court continued, “If [guards] 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.” (Ibid., italics added.)
Nor is the arrangement here like the one we approved of in Marks. There, the marshal was stationed “next to and slightly behind Juror No. 7.”7 (Marks, supra, 31 Cal.4th at p. 223, fn. 5, italics added.) Not only was the jury able to watch the defendant testify without having to simultaneously watch an officer guard the defendant, but nothing in the arrangement suggested particular alarm. Indeed, the trial court specifically admonished the jury that the marshal sitting next to the jury box was “ ‘a perfectly normal procedure.’ ”8 (Marks, at p. 223.)
Here, of course, defendant’s uniformed escort remained at his side as he walked to and from the witness stand and as he testified. It is difficult to imagine therefore that the jury interpreted the security measure as an “element)] of an impressive drama [rather] than as [a] reminder[] of the defendant’s special status.”9 (Holbrook, supra, 475 U.S. at p. 569.) Nor is it likely the jury believed that a uniformed escort assigned to defendant alone was providing general security for the courtroom. The very nature of the arrangement underscored that it was focused on defendant and the risk he might pose.
Thus, I conclude that, like physical restraints or prison clothing, the security arrangement in this case was inherently prejudicial and posed a *651serious risk to the presumption of innocence and to the right to a fair trial.10 As such, while the measure might be justified under certain circumstances, the trial court should have first found a manifest need to justify permitting the arrangement. No manifest need, such as defendant posing a flight or safety risk, was identified by the trial court in support of the use of a uniformed escort. Rather, the trial court justified its decision by concluding that the arrangement was no more prejudicial than having a guard sit behind defendant at the defense table and that the sheriff’s department justification for its blanket policy of accompanying all in-custody defendants was reasonable, and by relating an anecdote about a previous juror being uncomfortable with an armed police officer sitting at the witness stand. None of these reasons suffice.
Reversal is required unless the state can prove the error was harmless “beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) In applying the Chapman standard to the erroneous use of physical restraints, the Deck court explained that the use of restraints “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.’ [Citation.]” (Deck, supra, 535 U.S. at p. 635.) “Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the . . . error complained of did not contribute to the verdict obtained.’ [Citation.]” {Ibid.) The same is true of the error in this case.
Here, as Justice Ruvolo explained, the evidence at trial was equivocal and inconclusive and the trial’s outcome essentially rested on whether the jury believed defendant or his daughter. For example, although there was some evidence to corroborate the victim’s version of events, such as the rock of “crystal” she gave her grandmother and the red mark on the victim’s neck, there was also testimony that the victim had such a mark on her neck on a *652prior occasion and that the victim had previously made up a story that she had been stabbed in order to get defendant to call her. Given the state of the evidence, it cannot be demonstrated beyond a reasonable doubt that the trial court’s error did not contribute to defendant’s conviction, and it should therefore be reversed. (Chapman v. California, supra, 386 U.S. at p. 24.) I respectfully dissent.
Kennard, J., concurred.
Appellant’s petition for a rehearing was denied December 23, 2009. Werdegar, J., did not participate therein. Kennard, J., and Moreno, J., were of the opinion that the petition should be granted.
As the majority notes (maj. opn., ante, at p. 632), the prosecutor also remarked that defendant had become agitated in the presence of some deputies and one of the jurors had noticed his agitation. The record demonstrates, however, that the trial court did not base its ruling on the prosecutor’s assertion. Moreover, it was later clarified that the juror referred to by the prosecutor did not feel threatened by defendant. {Ibid.)
There is some confusion over whether the deputy was armed. The majority and dissenting opinions below describe the deputy as armed, but the record itself is silent on the subject. (Maj. opn., ante, at p. 631, fn. 1.) Whether the deputy was armed does not alter my conclusion.
The majority suggests it is alternatively possible that a deputy deployed elsewhere in the courtroom simply moved to the vicinity of the witness box (rather than the deputy seated behind defendant at the defense table escorting defendant to the stand). (Maj. opn., ante, at p. 636, fn. 4.) However, after noting a deputy was seated behind defendant throughout the trial, the trial court then stated, “[h]aving the deputy in, basically, the same proximity, I think, will be no more prejudicial. . . .” (Italics added.) The reasonable inference to be drawn is that the same deputy that had been seated behind defendant, left his or her position to escort defendant to the stand.
The majority also indicates the record is silent as to where the deputy was stationed during defendant’s testimony. (Maj. opn., ante, at p. 636, fn. 4.) To the contrary, when objecting to the arrangement, defense counsel stated the deputy would be seated next to defendant on the witness stand. And, after defendant testified, counsel stated for the record that the officer had been “with [defendant] up on the stand next to him . . . .” Neither the trial court nor the prosecutor disagreed with defense counsel’s characterization of the security arrangement. Nor does the Attorney General contest defendant’s description of the layout. I therefore find no reason to quibble with Justice Ruvolo’s conclusion that the deputy “s[a]t right beside the accused” in full view of the jury.
Although the trial court here indicated the Alameda County Sheriff’s Department has a policy of accompanying all in-custody defendants to the stand (a statement unchallenged by the prosecutor or the deputy sheriff in the courtroom), the majority suggests no such policy exists. (Maj. opn., ante, at p. 642, fn. 9.) I reach no conclusion on this point; however, if such a policy exists, it would seem to raise the same potential equal protection violation discussed in Estelle, supra, 425 U.S. at pages 505 to 506.
In addition, the defendant’s attorneys requested the trial court use physical restraints on their client; one was concerned the defendant might attack him during the trial and the other was worried the defendant would hurt his defense by committing misconduct in front of the jury. (Marks, supra, 31 Cal.4th at p. 222.)
In this case, the danger was heightened because, in contrast to defendant’s deputy sheriff escort, defendant’s daughter was accompanied during her testimony by a support person pursuant to Penal Code section 868.5. The majority dismisses the risk, reasoning jurors could have simply concluded it was routine for the key witnesses to be accompanied by another person. (Maj. opn., ante, at p. 641.) It beggars the imagination that jurors could have drawn such an innocuous inference from a defendant being accompanied by a uniformed officer during his testimony while the prosecuting witness was accompanied during her testimony by someone explicitly identified to the jury as a “victim witness advocate.”
The majority correctly observes (maj. opn., ante, at p. 636, fn. 5) that in Marks, supra, 31 Cal.4th at page 223, the trial court indicated “it would position a marshal in a chair next to defendant on the raised platform . . . .” However, we subsequently pointed out that “It appears that the marshal sat four or five feet from defendant’s side (facing his ear) next to and slightly behind Juror No. 7.” (Id. at p. 223, fn. 5.) Not only is the footnote the more specific description of the layout — it indicates the marshal was stationed next to the jury box (and not, as the majority implies (maj. opn., ante, at p. 636, fn. 5), in between the jury and defendant).
This is in contrast to the more general instruction given by the trial court in this case instructing the jury not to consider or speculate about the fact “ ‘that the Defendant is in custody ....’” (Maj. opn., ante, at p. 641, fn. 8.)
Thus, unlike Marks, the jury in this case could not help but see the deputy sheriff while watching defendant testify.
The majority cites two federal court of appeals decisions (Wainwright v. Lockhart (8th Cir. 1996) 80 F.3d 1226, 1232; U.S. v. Williams (8th Cir. 1990) 897 F.2d 1430, 1434) and two Illinois state court decisions (People v. Peeples (2002) 205 Ill.2d 480, 525-532 [275 Ill.Dec. 870, 793 N.E.2d 641, 669-672]; People v. Hughes (1990) 205 Ill.App.3d 79, 83-84 [150 Ill.Dec. 463, 562 N.E.2d 1266, 1269]) that held otherwise. (Maj. opn., ante, at pp. 639-640.) However, those courts’ holdings were based on the notion that there is no legally significant difference between an officer sitting behind a defendant at the defense table and an officer escorting a defendant to the stand and sitting next to the defendant as he or she testifies. Common sense requires the rejection of such a dubious premise.