                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 JORGE CARLOS RODRIGUEZ, Appellant.

                             No. 1 CA-CR 15-0178
                               FILED 2-28-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2007-176100-001 DT
            The Honorable Robert L. Gottsfield, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                          STATE v. RODRIGUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


H O W E, Judge:

¶1            Jorge Carlos Rodriguez appeals the trial court’s ruling that
inmate restraining devices were necessary during his trial. Rodriguez’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that
counsel found no arguable questions of law and asks us to search the record
for fundamental error. Rodriguez has filed a supplemental brief in propria
persona arguing that (1) no valid reason existed to justify the use of
restraining devices, (2) the trial court impermissibly shifted the burden of
proof to him, and (3) he was unable to fully participate in his trial because
of the adverse psychological effects the restraints had on him. After
reviewing the record, we affirm Rodriguez’s convictions and sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Rodriguez. See State
v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).

¶3             The Maricopa County Sheriff’s Office required Rodriguez to
wear leg braces and a remotely activated custody and control (“RACC”)
stun-belt during his trial. On the fourth day of his five-day trial, Rodriguez
moved to “preclude leg braces and [the] electric security back harness
during trial.” Rodriguez feared that his leg braces would get stuck in the
locked position and that the jury would notice his restraints. Rodriguez
stated that he focused more on his restraints than his trial because an officer
told him of an instance when a RACC belt accidently activated. When the
trial court asked Rodriguez why he wanted the restraints off, he responded
that he felt uncomfortable walking with the leg braces because when they
lock up he has to bend down to unlock them. The trial court denied the
motion but ordered that Rodriguez take the witness stand outside the
presence of the jury. After the trial court denied the motion, neither
Rodriguez nor his trial attorney brought up the restraints.




                                      2
                         STATE v. RODRIGUEZ
                          Decision of the Court

¶4            The jury found Rodriguez guilty of five counts of child
molestation; two counts of sexual conduct with a minor; one count of public
sexual indecency to a minor; and one count of furnishing obscene or
harmful items to a minor. Rodriguez appealed his convictions and
sentences to this Court. Rodriguez argued that the trial court erred by
requiring him to wear the leg braces and RACC belt. We affirmed
Rodriguez’s convictions and sentences but remanded for the trial court to
hold a Deck1 hearing to determine retrospectively the appropriateness of the
restraining devices and whether the use of the devices interfered with
Rodriguez’s right to a fair trial. We also remanded for resentencing on two
counts for the trial court to determine whether consecutive sentences were
warranted.

¶5            At the Deck hearing, the trial court heard testimony from the
Maricopa County Sheriff’s Office court security supervisor, Rodriguez’s
trial attorney, and Rodriguez. The security supervisor explained that he
looks at multiple factors when making an individual risk assessment to
determine whether an inmate needs to wear restraints at trial. Specific to
Rodriguez, the security supervisor looked at the type of charges, the
possibility of Rodriguez facing multiple life sentences, past criminal
history, and the layout of the courtroom. The security supervisor also noted
Rodriguez’s manslaughter conviction four years before the current charges.
Of particular concern was the trial courtroom’s layout. Because the
courtroom was smaller and had no holding cell, security officers would not
have as much time to respond to a problem. The security supervisor
concluded that had the hearing occurred before the trial, he would have
recommended that Rodriguez wear both the leg braces and the RACC belt
during trial.

¶6            Rodriguez’s trial attorney worried that a juror could have
seen the restraints because the jury came close to Rodriguez when entering
and leaving the courtroom. He testified, however, that had any juror seen
or heard the leg braces or RACC belt he would have brought it to the court’s
attention. The trial attorney did not bring any issues to the trial court’s
attention after the court denied Rodriguez’s motion to preclude the
restraints.

¶7             According to Rodriguez, throughout the entirety of trial he
felt like he could not contribute to his defense because he feared that the
jury would see his restraints or that the RACC belt would accidently shock
him. Rodriguez explained that he wanted to talk to his attorney during jury

1     Deck v. Missouri, 544 U.S. 622 (2005).


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                           STATE v. RODRIGUEZ
                            Decision of the Court

selection but that he was afraid to even pick up a pen because he did not
know what would trigger the security officer to activate the RACC belt.
Rodriguez admitted to taking notes during the trial but no longer had them
at the time of the Deck hearing, however. Rodriguez stated that during his
testimony at trial, he was sweating profusely because he was nervous that
the jury would notice his restraints. No juror questioned whether restraints
were used and Rodriguez did not raise the issue again after the trial court
denied his motion.

¶8             After the Deck hearing, the trial court noted that the State had
satisfied its burden under the totality of the circumstances to prove that the
restraints were necessary. The trial court specifically noted that Rodriguez
faced a life sentence, that the layout of the courtroom required additional
precautions, and that Rodriguez’s charges were serious enough to warrant
safety concerns. The trial court accepted as true Rodriguez’s testimony that
he was fearful of the RACC belt, but also found that Rodriguez was able to
meaningfully communicate with his attorney. The court further determined
that even if the restraints were not necessary, wearing the restraints did not
prejudice Rodriguez because no evidence showed that the restraints
affected the trial or the jury.

¶9           The trial court then addressed the sentencing error. The trial
court resentenced the two counts to run concurrently with another count.
Rodriguez timely appealed.

                               DISCUSSION

¶10           We review the record in connection to the Deck hearing for
reversible error. See State v. Thompson, 229 Ariz. 43, 45 ¶ 3, 270 P.3d 870, 872
(App. 2012). Counsel for Rodriguez has advised this Court that after a
diligent search of the entire record, counsel has found no arguable question
of law. However, in his supplemental brief, Rodriguez argues that the trial
court erred by finding the use of restraints necessary, that the burden of
proof was impermissibly shifted to him to prove that he was prejudiced,
and that the restraints affected his ability to fully participate in his trial.

¶11           Matters of courtroom security and safety are left to the trial
court’s discretion. State v. Cruz, 218 Ariz. 149, 168 ¶ 118, 181 P.3d 196, 215
(2008). A trial court’s security decision will not be overturned unless an
abuse of discretion occurs. Id. But the court “must have grounds for
ordering restraints and should not simply defer to the prosecutor’s request,
a sheriff’s department’s policy, or security personnel’s preference for the
use of restraints.” Id. at ¶ 119.



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                            STATE v. RODRIGUEZ
                             Decision of the Court

¶12           Here, the trial court held a Deck hearing to retrospectively
determine whether the restraining devices were necessary. In making its
determination, the court relied on the security supervisor’s individual risk
assessment, the layout of the courtroom, the prior manslaughter conviction,
and the potential that Rodriguez would have to serve multiple life
sentences. The trial court found that under these specific facts, the use of
both restraining devices was appropriate. The record supports those
findings. Thus, the trial court did not abuse its discretion by finding that
the use of both restraints were necessary at trial.

¶13            Rodriguez next argues that the burden of proof was
improperly shifted to him during the Deck hearing. The court specifically
found, however, that the State had and met its burden. The court explained
that the State needed to show that case-specific reasons existed to warrant
the use of both restraining devices. The trial court had to determine if the
restraints were necessary, and if not necessary, if Rodriguez was
prejudiced. That the trial court heard testimony about whether Rodriguez
was prejudiced did not impermissibly shift the State’s burden to prove that
the restraints were necessary in this situation.

¶14            Rodriguez also contends that the restraints caused him such
fear that he was unable to concentrate on or participate in his trial.
Rodriguez relies on Gonzalez v. Pilfer, 341 F.3d 897, 901 (9th Cir. 2003) to
support his argument that the use of RACC belts prevents a defendant from
effectively communicating with his trial attorney. Here, the trial court
specifically found that the restraining devices did not impede Rodriguez’s
ability to communicate with his trial attorney. Arizona law does not require
the trial court to first pursue less restrictive alternatives. See State v. Benson,
232 Ariz. 452, 461–62 ¶¶ 31–32, 307 P.3d 19, 28–29 (2013). Rodriguez’s trial
attorney never brought to the trial court’s attention any issue about lack of
communication. Although Rodriguez stated that he was too nervous to pick
up a pen, he admitted that he took notes during the trial. Moreover, when
the trial court asked Rodriguez why he wanted the restraints removed he
only brought up the issue about whether the jurors might have noticed the
restraints, not that he was unable to effectively communicate with his trial
attorney. Thus, the trial court did not abuse its discretion by determining
that Rodriguez was not denied a fair trial.

¶15          Finally, Rodriguez appeals from the trial court’s resentencing
order but failed to argue any error in his supplemental brief. We have
reviewed the record for reversible error and find none.




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                          STATE v. RODRIGUEZ
                           Decision of the Court

¶16           Upon the filing of this decision, defense counsel shall inform
Rodriguez of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57
(1984). Rodriguez shall have 30 days from the date of this decision to
proceed, if he desires, with a pro per motion for reconsideration or petition
for review.

                              CONCLUSION

¶17          For the foregoing reasons, we affirm.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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