People v. Arango CA2/6

Filed 4/26/23 P. v. Arango CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321197
(Super. Ct. No. 21CR06136)
Plaintiff and Respondent, (Santa Barbara County)
v. ORDER MODIFYING
OPINION AND DENYING
JONATHAN ARANGO, REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]
THE COURT:
It is ordered the opinion filed herein on April 20, 2023, be
modified as follows:
1. On page 2, the first sentence of the first paragraph is
modified to read as follows:
Arango contends: (1) the judgment should be reversed
because he was restrained during trial, and (2) the
matter should be remanded for resentencing because
the trial court sentenced him without realizing it had
the discretion to wait for the preparation of a
probation report before doing so.
2. On page 3, second full paragraph, the following is added
as the last sentence of the paragraph, following the sentence
ending “incredibly visible and obvious.”:
No one disputed Arango’s arguments.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
GILBERT, P. J. YEGAN, J. BALTODANO, J.
2
Filed 4/20/23 P. v. Arango CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321197
(Super. Ct. No. 21CR06136)
Plaintiff and Respondent, (Santa Barbara County)
v.
JONATHAN ARANGO,
Defendant and Appellant.
Jonathan Arango appeals from the judgment after a jury
convicted him of felony possession of methamphetamine in jail
(Pen. Code,1 § 4573.6, subd. (a)) and misdemeanor resisting a
peace officer (§ 148, subd. (a)(1)). In a bifurcated proceeding, the
trial court found true an allegation that Arango had suffered a
prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)). It sentenced him to eight years in state prison on his
possession conviction (the upper term of four years, doubled) and
a concurrent 180 days on his resisting conviction.
1 Statutory references are to the Penal Code.
Arango contends: (1) the judgment should be reversed
because he was restrained during trial, and (2) the matter should
be remanded for resentencing because the trial court sentenced
him without a probation report. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In September 2021, sheriff’s deputies at the Santa Barbara
County jail discovered that Arango “possibly had been in
possession of narcotics.” They took him to an interview room
while they searched his cell. No narcotics were found.
Inside the interview room deputies told Arango that he
would be strip searched. Arango refused to cooperate and
assumed a fighting position. Deputies then took him to a
visitation booth to calm down. They confirmed there was no
contraband in the booth before leaving Arango there.
A few minutes later Arango agreed to cooperate during the
strip search. Deputies searched his person and did not find any
contraband. They then searched the visitation booth and found a
bindle of methamphetamine the size of a golf ball.
Prior to trial, County Counsel moved the trial court to order
Arango to wear leg shackles and a wrist restraint in court. In
support of the motion, County Counsel noted that Arango had a
“history of unruly, non-conforming, and disruptive behavior” and
had accrued multiple disciplinary incidents while in custody: In
2016 he tampered with County property and punched his
cellmate in the head while acting as an aggressor in a fight. In
2017 he dressed improperly despite multiple warnings. In 2020
he put graffiti on County property, was part of a jail yard fight,
acted disrespectfully toward deputies and failed to comply with
their commands, and illicitly possessed both alcohol and
prescription drugs. In 2021 he was an aggressor in another fight,
2
one that resulted in the victim suffering a punctured lung after
he was stabbed.
To minimize the jury’s view of the restraints, County
Counsel proposed putting a table skirt on the table where Arango
would be seated and wrapping the wrist restraint in black tape.
Arango would be moved only outside the presence of the jury.
Arango opposed County Counsel’s motion on the ground
that all the incidents cited in support of restraining him occurred
outside the courtroom. Arango also argued the arrangement of
the courtroom made it “particularly difficult to ‘shield’ the jury
from such restraints” because its members would have “a clear
and unobstructed view of his feet and legs underneath the table”
when they walked in. A single wrist restraint would also be
“incredibly visible and obvious.”
At the hearing on the County’s motion, Arango said that he
was willing to wear a leg brace because “that’s how he was
restrained at his last trial.” The trial court ordered him to wear
one. It also ordered him to wear a wrist restraint that connected
to a waist shackle worn underneath his shirt. Arango could keep
his restrained wrist under the table.
Arango later restated his objection to the wrist restraint.
He also complained that he could not stand as a sign of respect
for the jury due to his restraints. The trial court ordered that
nobody would stand for the jury, and asked if Arango wanted the
court to explain why. Arango opted against having the court call
attention to the issue.
At sentencing, the probation officer said that she had been
unable to complete a presentence report due to a COVID-19
outbreak at the jail. She requested two more weeks to do so.
Arango said he was unwilling to waive time for sentencing. The
3
trial court said that it was uncomfortable proceeding without a
probation report. It asked the probation officer and prosecutor
whether there was a good cause exception to continue sentencing
over Arango’s objection. Neither knew of one.
After arguments over aggravating and mitigating factors,
the trial court reiterated its desire to continue sentencing for the
probation report. Arango said that the court should proceed with
sentencing. Counsel agreed: “We’ve had a pretty significant
conversation about this, and he does not wish to waive time.”
The court then sentenced Arango to eight years in prison.
DISCUSSION
The wrist restraint
Arango contends the judgment should be reversed because
the trial court ordered him to wear a wrist restraint during trial.2
We disagree.
There is no evidence in the record showing that any
member of the jury was aware that Arango was wearing a wrist
restraint. Courts “have consistently found any unjustified or
unadmonished shackling harmless where there was no evidence
it was seen by the jury.” (People v. Tuilaepa (1992) 4 Cal.4th 569,
583-584; see also People v. Anderson (2001) 25 Cal.4th 543, 596
[compiling cases].) This is because “[t]he potential effect on the
presumption of innocence is eliminated if the jury does not see
the” restraint. (People v. Jackson (1993) 14 Cal.App.4th 1818,
1829.)
The wrist restraint here was also justified. A “ ‘trial court
has broad power to maintain courtroom security and orderly
proceedings.’ ” (People v. Stevens (2009) 47 Cal.4th 625, 632.)
2 Arango does not challenge the court’s order to wear a leg
brace.
4
But “extraordinary security practices” like wrist restraints “carry
an inordinate risk of infringing [on] a criminal defendant’s right
to a fair trial” because they “may erode the presumption of
innocence.” (Ibid.) Such “exceptional practices must be justified
by a particularized showing of manifest need sufficient to
overcome the substantial risk of prejudice they pose.” (Ibid.)
A “manifest need can be made with ‘ “evidence that the
defendant has threatened jail deputies, possessed weapons in
custody, threatened or assaulted other inmates, and/or engaged
in violent outbursts in court.” ’ ” (People v. Young (2019) 7
Cal.5th 905, 934 (Young).) Manifest need can also be established
if the “ ‘defendant poses a safety risk, a flight risk, or is likely to
disrupt the proceedings or otherwise engage in nonconforming
behavior.’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1270.) If the
trial court determines that such a need exists, the restraints
ordered “ ‘should be as unobtrusive as possible, although as
effective as necessary under the circumstances.’ ” (People v. Mar
(2002) 28 Cal.4th 1201, 1217.) We review for abuse of discretion.
(Young, at p. 934.)
The trial court did not abuse its discretion. Arango accrued
several disciplinary infractions while in custody in the years prior
to trial. He disrespected jailhouse deputies and refused to comply
with their commands. He possessed illicit drugs and alcohol in
jail. He had recently engaged in several fights, including at least
two in which he acted as an aggressor and one in which a victim
was stabbed. Ordering him restrained was accordingly proper.
(See, e.g., Young, supra, 7 Cal.5th at pp. 934-935 [use of
restraints appropriate where defendant had “ ‘numerous
problems while in custody’ ”]; People v. Amezcua & Flores (2019)
6 Cal.5th 886, 910 [manifest need for restraints where defendant
5
had multiple “incidents of violent or nonconforming custodial
behavior”].)
“The trial court [also] imposed the least[-]intrusive means
of restraint to accomplish its goal of maintaining courtroom
safety.” (People v. Billie (2017) 10 Cal.App.5th 434, 438.) Arango
had one hand free throughout trial. His wrist restraint was
covered in black tape and connected to a waist restraint hidden
beneath his clothing. And all parties remained seated
throughout trial. Such mitigation measures rendered Arango’s
wrist restraint as unobtrusive as possible. (Id. at pp. 438-439.)
The lack of a probation report at sentencing
A trial court must generally sentence a defendant within 20
judicial days of their conviction. (§ 1191.) Where a defendant is
ineligible for probation, the court has discretion to refer the case
to the probation officer and direct them “to investigate all facts
relevant to . . . sentencing.” (§ 1203, subd. (g); see also People v.
Johnson (1999) 70 Cal.App.4th 1429, 1432 (Johnson).) “Upon
that referral, the . . . officer shall immediately investigate the
circumstances surrounding the crime and the prior record and
history of the [defendant] and make a written report to the
court.” (§ 1203, subd. (g).) The court may delay sentencing until
the report is received. (§ 1191.)
Arango contends his sentence should be vacated because
the trial court did not wait for the probation officer’s report before
sentencing him, something he alleges it was unaware it was
permitted to do pursuant to section 1191. But Arango insisted—
multiple times—that the court sentence him without the report.
6
His contention is waived.3 (People v. Magee (1963) 217
Cal.App.2d 443, 476.)
Alternatively, Arango contends counsel was ineffective for
failing to override his wishes and request that sentencing be
continued until a probation report was produced. This contention
requires Arango to show that counsel performed deficiently and
that that deficient performance resulted in prejudice. (People v.
Mai (2013) 57 Cal.4th 986, 1009.) These showings are
“particularly difficult” to make on direct appeal. (Ibid.) As to the
first, we “defer to counsel’s reasonable tactical decisions” and
indulge “a ‘strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.’ ” (People v.
Lucas (1995) 12 Cal.4th 415, 436-437.) We will not find deficient
performance unless no conceivable reason for counsel’s actions
appears on the record. (People v. Cunningham (2001) 25 Cal.4th
926, 1003.) As to the second, Arango can establish prejudice by
showing “ ‘a probability sufficient to undermine confidence in the
outcome.’ ” (Ibid.) He must “prov[e] prejudice as a ‘demonstrable
reality,’ not simply speculation as to the effect of the errors or
omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883,
937.)
Arango fails to make the requisite showings here. As to
deficient performance, at sentencing counsel said that she had
discussed the matter with Arango and he insisted that he did not
wish to waive time. It is a reasonable tactical decision to honor a
client’s wishes. (People v. Lang (1989) 49 Cal.3d 991, 1031,
abrogated on another point by People v. Diaz (2015) 60 Cal.4th
1176, 1188-1190.)
3 As set forth more fully below, any error was also
harmless.
7
As to prejudice, at sentencing both Arango and prosecutors
set forth arguments on aggravating and mitigating factors. In
his briefing on appeal Arango “does not indicate there is any
additional [mitigating] information” that would have been
included in the probation report “that he was not permitted to
bring to the court’s attention” at sentencing. (Johnson, supra, 70
Cal.App.4th at p. 1432.) Nor does he assert the court was
unaware of such information; the judge who presided at
sentencing was the same judge who presided at trial. Thus on
this record he has failed to prove, as a demonstrable reality, that
the trial court would have imposed a lesser sentence had it
waited for a probation report. His ineffective-assistance-of-
counsel claim fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
8
Pauline Maxwell, Judge
Superior Court County of Santa Barbara
______________________________
John Derrick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.