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Name: People v. Govan (2023) 91 Cal.App.5th 1015
Case #: B316245
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 05/22/2023

It was an abuse of discretion to require a restraint belt without an individualized finding that defendant posed a safety or flight risk or was likely to disrupt the proceeding. A jury found defendant guilty of three counts of false imprisonment by violence; three counts of forcible oral copulation; three counts of forcible rape; and one count of attempted forcible rape. Because of the pandemic, jury selection was held in an unsecured room normally used for jury assembly. Because of this, and the seriousness of the charges, the trial court ordered defendant to be physically restrained by way of a belt around his waist connected to the back of his chair during jury selection. On appeal, defendant argued the trial court abused its discretion and deprived him of due process by ordering him to wear a restraint belt. Held: Remanded for resentencing. The Court of Appeal agreed the trial court abused its discretion. The court failed to justify restraining defendant on an individualized basis, such as with evidence showing defendant’s conduct in custody or in court demonstrated a safety or flight risk or that he was likely to disrupt the proceedings. The focus on the security of the room and the nature of the offenses was insufficient to support a finding of a manifest need to restrain defendant. However, courtroom shackling is harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense, as here.

Defendant’s absence during the reading of the verdicts did not interfere with his ability to defend against the charges. When the jury reached verdicts on all counts except one, defendant was quarantined in jail after he came in contact with someone who tested positive to COVID-19. The sheriff would not transport defendant to court for another 14 days. Over objection, in defendant’s absence, the trial court received the jury’s verdicts on the counts, and declared a mistrial on the remaining count. The trial court did not err under Penal Code section 1148 in finding that, despite reasonable diligence, the court was unable to obtain defendant’s presence for the reading of the verdicts, and it was therefore in the interest of justice to receive the verdicts in his absence. Additionally, there was no constitutional violation. The federal constitution does not require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. Defendant failed to show that his absence prejudiced his case other than the speculative possibility that one juror would have changed their vote to not guilty after seeing defendant in the courtroom.

The One Strike law, specifically Penal Code section 667.61(h), does not divest the trial court of its discretion to stay a sentence under Penal Code section 654. The trial court sentenced defendant to five 15 year-to-life terms under the One Strike law for forcible oral copulation and rape on five counts and, pursuant to former section 654, imposed and stayed three-year terms on on three counts of false imprisonment relating to the same victims. Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to remove the requirement that a court impose the longest sentence when a defendant is convicted of more than one offense arising from the same conduct. The People contended defendant was not entitled to resentencing because section 667.61(h) precludes the court from staying execution of a one-strike sentence. The court disagreed. The Legislature’s use of the precise language in section 667.61(h), “nor shall execution or imposition of sentence be suspended” is unique to a grant of probation. It does not follow that the subdivision was intended to bar a stay of a sentence under section 654, which uses different language and serves a separate purpose. [Editor’s Notes: (1) This creates a split of opinion with People v. Caparaz (2022) 80 Cal.App.5th 669. (2) The Court of Appeal also corrected defendant’s actual days of presentence custody credit, but concluded he was not entitled to any conduct credit because the One Strike law bars an award of conduct credit for an offender sentenced to indeterminate terms under section 667.61.]

The full opinion is available on the court’s website here: