Defendant Bernardo Guiterrez Duran appeals from a judgment upon jury convictions of assault with a deadly weapon by a life-term prisoner (Pen. Code, § 4500) and possession of a dirk or dagger when confined in prison (Pen. Code, § 4502).
Some 40 inmates were present in the plaza area of the California Men's Colony during an afternoon laundry exchange in April 1973. The inmates were supervised by guards in the plaza area, including Officers Martin and Santana. A guard in an observation tower, who had not theretofore observed any unusual activity, suddenly saw an inmate clutch his stomach and fall to his knees. Using the public address system the officer in the tower directed Martin to assist the fallen inmate and ordered Santana to stop another inmate who was running from the scene. The officer in the tower did not recognize the fleeing inmate. Santana apprehended defendant after the latter fell when he bumped a door frame through which he was attempting to flee. A single scissor blade was found approximately three feet from where defendant fell. The inmate victim, Sprague, sustained four wounds, two of which were deep punctures that could have been inflicted by the scissor blade. There were no identifiable fingerprints on the blade and the small amount of dried blood on the blade could not be identified by blood type.
No witness testified that he saw a stabbing or identified defendant as having attacked the victim with a weapon.
The rules governing the imposition of physical restraints
Recognizing these common law pronouncements, we held over 100 years ago in People v. Harrington (1871) 42 Cal. 165, that "any order or action of the Court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense; and especially would such physical bonds and restraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness and testifying in his own behalf." (Id., at p. 168.) We held accordingly that it was prejudicial
We have subsequently adhered to the Harrington rule. In People v. Kimball (1936) 5 Cal.2d 608 [55 P.2d 483], which involved a defendant who was handcuffed to an officer throughout the trial, we held that a defendant could not ordinarily be restrained when appearing in court. However, we held the defendant's expressed intention to escape, his threats to kill three or four witnesses, and the discovery of a homemade weapon in his boot on the first day of trial to constitute sufficient justification for the use of handcuffs. In People v. Ross (1967) 67 Cal.2d 64 [60 Cal.Rptr. 254, 429 P.2d 606] (revd. on other grounds, Ross v. California (1968) 391 U.S. 470 [20 L.Ed.2d 750, 88 S.Ct. 1850]) we stated, citing Harrington, that unless there is a danger of escape, "an accused is entitled to appear during the progress of his trial free of shackles." (People v. Ross, supra, 67 Cal.2d 64, 72.) We noted, however, that it was permissible to transport the prisoner to court in handcuffs and to keep him in such restraints until he entered the courtroom. (Id.; see also People v. Hillery (1967) 65 Cal.2d 795, 806 [56 Cal.Rptr. 280, 423 P.2d 208].) The physical restraint issue was most recently addressed in People v. Chacon (1968) 69 Cal.2d 765 [73 Cal.Rptr. 10, 447 P.2d 106, 34 A.L.R.3d 454], wherein we stated that a "defendant may be required to undergo reasonable restraints when they are necessary to assure his detention or to maintain order in the courtroom." (Id., at p. 778.) Chacon also emphasized the necessity of objecting to use of physical restraints and noted that not only was the limited restraint of handcuffing justified for defendant Chacon, but also that defense counsel had voiced no objections to the restraints.
Little has been written since Harrington about the reasons for limiting the use of physical restraints. We believe that it is manifest that the shackling of a criminal defendant will prejudice him in the minds of the jurors. When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his 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. (See Illinois v. Allen (1970) 397 U.S. 337, 344 [25 L.Ed.2d 353, 359, 90 S.Ct. 1057]; Odell v. Hudspeth (10th Cir.1951) 189 F.2d 300.) The removal of physical restraints is also desirable to assure that "every defendant is ... brought before the court with the appearance, dignity, and self-respect of a free and innocent man." (Eaddy v. People (1946) 115 Colo. 488, 492 [174 P.2d 717]; see also Illinois v. Allen, supra, 397 U.S. 337, 350-351 [25 L.Ed.2d 353, 362-363] (Brennan, J. concurring); Kennedy v. Cardwell, supra, 487 F.2d 101, 104; Helwig, Coping With the Unruly Criminal Defendant: The Option of the Allen Case (1971) 7 Gonzaga L.Rev. 17.) Finally, the United States Supreme Court has acknowledged that physical restraints should be used as a last resort not only because of the prejudice created in the jurors' minds, but also because "the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." (Illinois v. Allen, supra, 397 U.S. 337, 344 [25 L.Ed.2d 353, 359].)
Some recent decisions of the Court of Appeal have employed an analysis of the physical restraints issue inconsistent with that adopted in Harrington. In People v. Morris (1971) 20 Cal.App.3d 659 [97 Cal.Rptr. 817], it is stated that the decision to manacle a defendant was within the trial judge's discretion and that the jurors would disregard the presence of shackles as a collateral matter unrelated to the process of guilt determination. Morris held that "the 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 performed his duty until and unless the defendant shows without equivocation that there was no basis whatever for the restraint employed." (Italics added; id., at p. 666; see also People v. Pena (1972) 25 Cal.App.3d 414, 424-427 [101 Cal.Rptr. 804] and People v. Earl (1973) 29 Cal.App.3d 894, 900-901 [105 Cal.Rptr. 831], both of which adopt Morris' language concerning the trial court's power to order physical restraints and the defendant's burden to show the restraints were unlawfully imposed.) Morris is inconsistent with our views in that it not only affords the trial court virtually unlimited discretion to order shackling or other restraints but also places an extremely heavy burden upon the defendant to show an abuse of discretion. Accordingly, we conclude that to the extent Morris, Pena and Earl are inconsistent with this opinion they are disapproved.
We are not unmindful of the dangers posed by unruly defendants or by those who have expressed an intention to escape.
Defense counsel's showing in support of a belief that Gallegos might be impeached was far from compelling but it nevertheless demonstrated that counsel was acting in good faith and might anticipate that his inquiry could be productive. He was thus entitled to explore what inducements, if any, had been afforded the witness, particularly when it was the prosecution which first raised the issue of such inducements. (Evid. Code, § 780, subd. (f); People v. Winston (1956) 46 Cal.2d 151, 157 [293 P.2d 40]; People v. Brown (1970) 13 Cal.App.3d 876, 883 [91 Cal.Rptr. 904].) In People v. Ruthford (1975) 14 Cal.3d 399 [121 Cal.Rptr. 261, 534 P.2d 1341] we stated that a promise made to a witness that in exchange for his testimony his wife would receive a light sentence in another matter, was the basis for a "crucial attack by the defense upon the credibility of the key prosecution witness." (Id., at p. 410.) We held in that case that the failure of the prosecutor to apprise the defense that such a promise had been made was misconduct which required reversal of the judgment of conviction. Here, too, the witness subject to impeachment was a key prosecution witness, in fact, he was the only witness who testified that defendant struck at the victim. It was thus error to deny defendant the right to explore on cross-examination the possible inducement for Gallegos' testimony.
It was error, accordingly, to reject on hearsay grounds defendant's offer of the warnings in an attempt to lend credibility to his stated reasons for fleeing the scene of the stabbing.
Defendant's other contentions need not be considered.
The judgment is reversed.
Tobriner, J., Mosk, J., Sullivan, J., and Richardson, J., concurred.
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
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
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.
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.
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
I would affirm the judgment in other respects.
McComb, J., concurred.
Penal Code section 4502 provides in pertinent part: "Every person confined in a state prison ... who ... possesses or carries upon his person or has under his custody or control ... any dirk or dagger or sharp instrument ... is guilty of a felony and shall be punishable by imprisonment in a state prison for a term not less than three years."