Filed 7/16/14 P. v. Carnes CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C071147

                   Plaintiff and Respondent,                                     (Super. Ct. No. 07F11757)

         v.

ARTHUR CHARLES CARNES,

                   Defendant and Appellant.




         A jury found defendant Arthur Charles Carnes guilty of first degree murder and
found he personally and intentionally used and discharged a firearm, causing death. (Pen.
Code, §§ 187, subd. (a), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) The trial court
sentenced him to prison for 50 years to life, and he timely appealed. On appeal,
defendant challenges physical restraints imposed on him during the trial. We find no
error regarding the trial court’s restraint orders, and alternatively find any error harmless
beyond a reasonable doubt. We shall affirm.



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                                         FACTS
       The facts of the crime are not disputed on appeal.
       People’s Case
       Defendant lived in a shed on Matthew Seybert’s Galt property, and worked for
him, although they often argued. Defendant mentioned killing his enemies, and
threatened Seybert in a barn on the property. Defendant showed Timothy Milano his
AK-47 assault rifle, and said he knew how to knock people out with chloroform. On
November 17, 2007, Seybert told a friend he was going to move and not take defendant,
and he expected defendant to be very upset by this news. On November 22, 2007,
Milano went to Seybert’s home and found “a ghost town,” with Seybert’s medications
and computer equipment missing.
       On December 4, 2007, peace officers found a bullet hole in Seybert’s bloody
bedroom. Later, they found his severed head and body parts on the property. Seybert’s
body had been stabbed more than 20 times, and he was partly emasculated. Earlier,
officers found Seybert’s bank statement in the shed defendant used, and later defendant
made five $500 ATM withdrawals from Seybert’s account, at banks in Oregon,
Washington and British Columbia.
       On January 26, 2008, the Royal Canadian Mounted Police (RCMP) found an AK-
47 assault rifle in defendant’s bedroom in British Columbia, Seybert’s bank cards and
watch, and a camera with images of Seybert bound, then decapitated and dismembered.
Seybert’s blood was on a bullet in the wall of his bedroom, which had been fired from
defendant’s rifle.
       A woman testified that in 1991, defendant knocked her out with chloroform and
she woke up to find herself tied up as defendant dragged her across a basement.




                                            2
       Defense Case
       Defendant, acting as his own attorney, recalled Milano, to try to highlight
inconsistencies in his story. Defendant also called his investigator, who identified
photographs of a barn that he took in 2012 and described its features (but readily
conceded on cross-examination that he did not know what the barn looked like in 2007).
He also called a munitions expert who described a website defendant created, that was
devoted to improvised weapons, poisons and explosives, and who opined defendant “has
a pretty good grasp of improvised munitions, improvised terror devices. I would say a
very broad base [sic] knowledge of all manner of unconventional warfare.”
       During his closing argument, defendant admitted the 1991 incident, admitted his
gun was the murder weapon, and admitted using Seybert’s bank card on the way to
Canada, but argued he was too clever to leave such a trail--by not hiding his identity
when using the ATMs and not altering or destroying the gun--if he had actually killed
Seybert. Defendant highlighted alleged inconsistencies in the evidence, and suggested
that Milano, who had admitted firing defendant’s AK-47 in the past, actually killed
Seybert. Although confined to his chair for the duration of trial due to the disputed order,
defendant frequently referred to specific exhibits, which were displayed to the jury by
either a bailiff or court attendant, at his direction, during both trial and argument.
       The jury convicted defendant as charged, of first degree murder, and of personally
and intentionally discharging a firearm, causing death.
                                       DISCUSSION
       Defendant challenges only that portion of the trial court’s order regarding extra
courtroom security measures that affected defendant’s movement during the trial. We
find no error, and alternatively find any error was harmless beyond a reasonable doubt.




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                                              I
                                       Security Ruling
       The Sacramento County Sheriff’s Department sought special security measures at
the start of defendant’s pro per trial, including extra personnel in and out of the
courtroom, searches of members of the public entering the courtroom, explosive
detecting dogs, and securing the jury. It made this request due to defendant’s knowledge
of improvised weaponry, including explosives and chemical weapons, his status as the
administrator of anti-government websites, the fact he had “followers” on such sites with
access to weapons who had communicated with defendant using coded messages while
he was in jail. Further, a plastic knife “and other suspicious items” had been sent to
defendant and he had expressed an apparent intent to escape.
       The trial court held several hearings and issued a 19-page ruling, with numerous
attachments, finding “an overriding security risk” justified such measures. Pertinent
points include:
       1. The trial court found defendant held anti-government beliefs and was skilled in
improvised weaponry and violent crime. Defendant admitted he had been the
administrator of a website devoted to “the manufacturing of weapons of every variety”
and “how to communicate in code.” The website was a “cookbook on how to do harm
which, although potentially 12 years old, is quite frightening. The site further expresses
the defendant’s belief that the public should fight the government generally and law
enforcement specifically through underground means because the government is
destroying the public’s constitutional rights and militarizing the police in preparation for
dictatorship.” Indeed, defendant testified at a hearing regarding escape risk: “ ‘[I]f I was
going to do something, given my skills and knowledge about improvised weaponry and
all this other stuff, surely, if I had intended to, I could have made a weapon at any point
in the past.’ ”



                                              4
       2. Defendant had an online following in the anti-government community that had
been “actively following his trial.” Two “potential followers” had communicated with
him in code while he had been in custody, and commentators on several anti-government
online fora had been actively discussing his trial.
       3. Defendant communicated in code with people outside jail, and some messages
discussed explosives and the radios the sheriff’s department uses, and a person who sent
defendant a box containing knives and other dangerous material was an ordinance expert
who worked at Camp Pendleton, testing munitions.
       4. The RCMP found a knife in defendant’s cell before he was extradited. The box
sent to the Sacramento jail by one of his followers contained a metal double-bladed knife
and a non-metallic double-bladed knife “which was not detectable when the box was
examined at the Court’s magnetometer.” The box also had information on weaknesses in
body armor that could apply to the armor worn by courtroom deputies.
       5. Defendant possessed a digital camera while in jail, and “acknowledged that the
camera could be broken down to make a detonator but claimed it was missing the
explosive components to make [a] bomb[.]”
       6. Defendant was sent “bricks” of a substance that the Sheriff’s Explosive
Ordinance Detail determined was flammable.
       7. Defendant indicated that he would try to escape, both to the RCMP before
extradition, and while using the jail law library.
       Further, no alternatives had been suggested by defendant, who voiced no objection
to the extra measures so long as the jury was not made aware of them.
       These same points informed and supported the trial court’s decision to order that
the defendant remain seated in his chair during trial. Attached to the security order were
transcripts of four hearings held which in part addressed the physical restraints requested
by the sheriff’s department.



                                              5
       On January 26, 2012, defendant was described as “belly chained and shackled” to
his chair, and the security officer asked that “maximum restraints” be used at trial.
Defendant claimed the knives were relevant to his defense because the evidence would
show he “habitually” wore similar knives, which were not consistent with the wounds to
Seybert as described by the coroner. He claimed the articles on killing and chloroform
that had been sent were stale, and in any event were relevant to his defense, as well as the
“bricks” of material, which could be used to model “wound ballistics and military law
enforcement testing regarding . . . knives and blunt trauma.” He objected to restraints
because “surely the DA is going to be getting up approaching the jury box, the witnesses,
approaching evidence table, handling exhibits, et cetera. And then there would be me,
the defendant, hiding behind a desk never being seen to rise or to approach or handle any
of the exhibits. [¶] And, ah, the jurors are not going to be stupid[,]” but would realize
defendant was restrained.
       The trial court found that although some of defendant’s contentions in isolation
might be plausible, the totality of the record showed a manifest need for physical
restraints. The restraints would not be visible to the jury, and the prosecutor was ordered
not to stand when the jury entered or left the courtroom, but would be permitted to stand
when questioning prospective jurors during voir dire and witnesses during trial. The trial
court gave defendant the choice whether it would admonish the jury about defendant
having to remain seated, and defendant asked for time to think about that, which was
granted. Defendant also asked to be allowed to stand while wearing a stun belt, during
closing arguments, and that issue was deferred, with defendant’s concurrence.
       On January 31, 2012, after additional information was presented, defendant
contended his comment to the RCMP had meant he was fighting extradition, not that he
would try to escape, and the knife the RCMP found was not his. He added that if he had
wanted to avoid trial in the United States, he had had ample opportunity to kill someone
while in jail in Canada and remain there for trial. He denied receiving or sending coded

                                             6
messages. At that point the trial court indicated it probably would not allow him to stand
for closing arguments, and reiterated that defendant could choose whether the trial court
would admonish the jury about restraints. The court repeated that although defendant had
some individually plausible explanations for some of the evidence, the totality of the
evidence showed he presented a manifest danger requiring restraint, including his
knowledge of poisons and explosives, how to evade the police, how to use codes, how to
pick locks and overcome magnetic doors, and how to knock people out with chemicals.
Further, the box containing the knives, and “bricks” of flammable material and
instructions on how to attack an officer wearing body armor, had been delivered to
defendant “with the cloak of attorney-client work-product kind of protection.” The trial
court also discussed certain cases regarding whether the prosecutor should be similarly
limited, (see People v. Burnett (1980) 111 Cal.App.3d 661 (Burnett); People v. Slaughter,
2005 Cal. App. Unpub. LEXIS 11822 (Dec. 21, 2005, C045623) [nonpub. opn.]), and
adhered to its ruling that the prosecutor would only be limited to his chair during
introductions and when the jury entered and left the courtroom.
       Defendant elected to have the trial court admonish and voir dire the jury about his
need to remain in his chair, but not about the courtroom security. The trial court later
described the admonishment as follows: “I advised them during the jury selection
process that as a pro per defendant who was in custody, he would have to stay in the
chair. Obviously, there was no reference to restraints of any kind. [¶] I don’t believe the
jury knows that he was restrained physically. I think they would assume he was
restrained by order, which of course he was as well.” During voir dire the trial court told
the venire that because defendant was in custody “and even though he is representing
himself, as is customary, I have ordered that he remain in this chair,” and he asked jurors
if they could follow the admonition not to hold that against defendant, and still apply the
presumption of innocence.



                                             7
       On February 8, 2012, the trial court again summarized the reasons for imposing
extraordinary in-court security measures. On March 12, 2002, it issued its written ruling.
                                                  II
                                              Analysis
       On appeal, defendant contends primarily that because he was representing himself,
his inability to stand or move about the courtroom as freely as the prosecutor, particularly
during closing arguments, undermined the fairness of the proceedings. We disagree.
       Restraints and Abuse of Discretion
       “No person charged with a public offense may be subjected, before conviction, to
any more restraint than is necessary for his detention to answer the charge.” (Pen. Code,
§ 688.) Based on “possible prejudice in the minds of the jurors, the affront to human
dignity, the disrespect for the entire judicial system which is incident to unjustifiable use
of physical restraints, as well as the effect such restraints have upon a defendant's
decision to take the stand,” our Supreme Court has reaffirmed the rule “that a defendant
cannot be subjected to physical restraints of any kind in the courtroom while in the jury's
presence, unless there is a showing of a manifest need for such restraints.” (People v.
Duran (1976) 16 Cal.3d 282, 290-291 (Duran).)
       The decision to shackle a defendant is within the discretion of the trial court and
will be upheld by a reviewing court in the absence of an abuse of discretion. (People v.
Cunningham (2001) 25 Cal.4th 926, 987 (Cunningham).) “We normally review a trial
court’s ruling based on the facts known to the trial court at the time of the ruling.”
(People v. Cervantes (2004) 118 Cal.App.4th 162, 176 [trustworthiness of statement]; see
People v. Welch (1999) 20 Cal.4th 701, 739 [Faretta motion]; People v. Cummings
(1993) 4 Cal.4th 1233, 1287 [severance motion].)
       “The imposition of physical restraints in the absence of a record showing of
violence or a threat of violence or other nonconforming conduct will be deemed to
constitute an abuse of discretion.” (Duran, supra, 16 Cal.3d at p. 291.)

                                              8
       Here, the trial court clearly was permitted to impose extra security measures. The
evidence before it showed defendant posed a definite threat to court personnel and was at
high risk for escape. (See, e.g., People v. Virgil (2011) 51 Cal.4th 1210, 1270-1271
[possession and attempted use of makeshift handcuff key; “It was reasonable for the court
to conclude from this evidence that defendant had been caught attempting to help another
inmate escape, and possibly attempting to escape himself”]; People v. Gamache (2010)
48 Cal.4th 347, 369–370 [Gamache found with a homemade handcuff key, properly
deemed a flight risk]; People v. Livaditis (1992) 2 Cal.4th 759, 774 [“The information
regarding the possible escape plans, together with defendant’s history of prior escape
attempts, was a sufficient basis for the temporary leg brace”]; People v. Stankewitz
(1990) 51 Cal.3d 72, 95-97 [Stankewitz had attempted to escape and engaged in violent
conduct; properly restrained].)
       Nor is conduct supporting shackling limited to escapes or acts of violence in the
courtroom. (People v. Hawkins (1995) 10 Cal.4th 920, 944.) In Hawkins, Hawkins
fought three times in prison--the fights and his extensive criminal history were sufficient
to justify shackling. (Ibid.) In Cunningham, supra, 25 Cal.4th at page 988, the court
properly ordered restraints despite Cunningham’s largely non-violent conduct. Here,
defendant sent and received coded communications, and received a box containing
knives, flammable material, and information about how to defeat body armor. Added to
that, the trial court could consider the nature of the killing and dismemberment,
defendant’s flight to Canada, his possession of a knife in a Canadian jail, and his
statements indicating his intent to escape, all of which show extra security and physical
restraints were manifestly necessary.
       Defendant argues about the relevance or value of some of the supporting evidence,
drawing alternative inferences with less evidentiary worth from his statements, and
minimizes the likelihood that he could actually manufacture an explosive device or
escape. However, on appeal, we construe the evidence in the light most favorable to the

                                             9
trial court’s factual rulings, and then measure them against applicable legal standards, in
order to determine whether an abuse of discretion has been shown. (See People v. Cluff
(2001) 87 Cal.App.4th. 991, 998.) Defendant’s factual quibbles do not show error.
       A concurring opinion in People v. Soukomlane (2008) 162 Cal.App.4th 214, relied
on by defendant (but inexplicably not even cited by respondent) suggests steps a trial
court may take when confronted with a difficult self-represented defendant, the second of
which is “do not shackle a propria persona defendant.” (Id. at pp. 235-236 (conc. opn. of
Cornell, J.).) We certainly agree a defendant’s self-represented status is a factor the trial
court should consider, but we disagree that status imposes an absolute prohibition on
restraints in such cases.
       The remedy chosen by this court was a sensible compromise: The jury was told
defendant was not allowed to leave his chair due to a court order triggered by defendant’s
custody status, and during voir dire the jurors indicated this would not affect their
application of the presumption of innocence; defendant was allowed to question
witnesses and refer to exhibits with the aid of court personnel, and allowed to make his
closing argument, without the jury being distracted or prejudiced by seeing that he was
shackled. The trial court followed the rule that “where physical restraints are used those
restraints should be as unobtrusive as possible, although as effective as necessary under
the circumstances.” (Duran, supra, 16 Cal.3d at p. 291, emphasis added.)
       As defendant points out, the prosecutor was allowed to stand to question witnesses
and make arguments--but not allowed to stand when the jury entered or left the
courtroom--whereas defendant was not. But the reason for this different treatment was
explained to the jury as resulting from defendant’s custody status; there is no evidence
that the jury was inclined to speculate that he remained seated for any other reason than
that given by the trial court. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors
are presumed able to understand and correlate instructions and are further presumed to
have followed the court’s instructions”].)

                                             10
       In Burnett, supra, 111 Cal.App.3d 661, the reasons stated by the trial court for
using leg chains on a self-represented defendant on trial for four robberies--consisting of
a seven-year-old escape conviction, and a prior first degree murder conviction for which
Burnett was then serving a life sentence--were found wanting by the appellate court. The
Burnett court concluded the escape conviction was too stale, and that the murder
conviction and sentence, and current charges, were insufficient to require shackling,
where the prosecutor conceded Burnett had behaved appropriately during the
proceedings. (Id. at pp. 664-668.) Burnett found an abuse of discretion, classifying
physical restrictions similar to those imposed in this case as “unnecessary restriction on
[defendant’s] efforts to represent himself” and “unwarranted additional restraint” to the
“limitations inherent in self-representation.” (Id. at p. 669.) We find Burnett
distinguishable on the facts and unpersuasive on the law.1
       Here, unlike in Burnett, the prosecutor did not concede defendant behaved well
during the proceedings, and the detailed pretrial ruling shows otherwise, as we explained
ante. Therefore, putting aside Burnett’s highly dubious conclusions that a seven-year-old
escape conviction was too “stale” to be a valid consideration, and the fact that Burnett
was already a convicted murderer serving a life sentence was insufficient to justify
restraints, Burnett is distinguishable given defendant’s concerning behavior here.
       Further, even if we assume error in restricting defendant’s movement, and further
assume, without deciding, that the error was of federal constitutional dimension, we hold
any error harmless beyond a reasonable doubt. Defendant relies on the rule that, “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

_____________________________________________________________________
1  Inexplicably, defendant did not mention Burnett until the reply brief, although it was
discussed by the trial court, and inexcusably the Attorney General does not address it at
all.

                                            11
process violation. The State must prove ‘beyond a reasonable doubt that the [shackling]
error complained of did not contribute to the verdict obtained.’ ” (Deck v. Missouri
(2005) 544 U.S. 622, 635 [161 L.Ed.2d 953, 966], quoting Chapman v. California (1967)
386 U.S. 18 [17 L.Ed.2d 705].) This court has described the test for the Chapman
standard as follows: “To find the error harmless we must find beyond a reasonable doubt
that it did not contribute to the verdict, that it was unimportant in relation to everything
else the jury considered on the issue in question.” (People v. Song (2004)
124 Cal.App.4th 973, 984; see Yates v. Evatt (1991) 500 U.S. 391, 403-404 [114 L.Ed.2d
432, 448-449].)
       Here we are able to make the required finding without pause. The evidence that
defendant murdered Seybert is such that it is clear to us beyond a reasonable doubt that
the restrictions on defendant’s movement did not contribute to the verdict. Seybert was
going to evict defendant and knew that would make defendant angry. Defendant’s
assault rifle was used to kill Seybert, and defendant used Seybert’s bank cards to
withdraw cash while fleeing to Canada, where he was captured in possession of the
murder weapon and a digital camera depicting the murder and dismemberment in stages.
No plausible third-party culpability evidence was developed at trial, given that Milano
had no apparent motive to kill Seybert, and did not flee with the murder weapon, use
Seybert’s bank cards on the way to Canada, and retain digital images of the crime in its
various gruesome stages, as did defendant. It is likely defendant’s theory that he was too
clever about weapons and ATM cameras to get caught harmed his defense, rather than
bolstered it. In such circumstances, any error was harmless beyond a reasonable doubt.




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                                  DISPOSITION
     The judgment is affirmed.



                                                DUARTE   , J.



We concur:



     RAYE               , P. J.



     MURRAY             , J.




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