Filed 10/23/14 P. v. Lowe CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066248
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11903239)
                   v.

JAMES IRA LOWE,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Jane A.
Cardoza, Judge.
         Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant James Ira Lowe was convicted of first degree burglary (Pen. Code,1
§§ 459 & 460, subd. (a); count 1), robbery (§ 211; count 2), possession of a firearm by a
felon (§ 12021, subd. (a)(1);2 count 3), grand theft of a firearm (§ 487, subd. (d); count
4), assault with a semiautomatic firearm (§ 245, subd. (b); count 5), and assault with a
deadly weapon (§ 245, subd. (a)(1); count 6). The jury found that he personally used a
firearm in connection with count 2 (§ 12022.53, subd. (b)) and count 5 (§ 12022.5, subd.
(a)). Defendant also admitted that he previously was convicted of a serious felony (§ 667,
subd. (a)) and served four separate prison terms (§ 667.5, subd. (b)). He was sentenced to
40 years eight months in prison3 and ordered to pay the maximum restitution fine of
$10,000, inter alia.
       On appeal, defendant contends that the trial court erroneously (1) refused to give
requested jury instructions on unconsciousness and involuntary intoxication, (2) sustained
the prosecutor’s relevance objection to a question about whether his prescription
medications could cause somnambulism, (3) restrained him via silent tether during trial,
and (4) imposed the maximum restitution fine. In affirming the judgment, we conclude
that (1) the court properly refused to give the requested instructions; (2) the court’s


1      Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
2     Effective January 1, 2011, and operative January 1, 2012, section 12021,
subdivision (a), was repealed and reenacted without substantive change as section 29800,
subdivision (a). (Cal. Law Revision Com. com., West Ann. Pen. Code (2012 ed.) foll.
§ 29800, p. 194.)
3      The trial court imposed (1) the doubled upper term of 18 years plus a 10-year
enhancement for personal firearm use, a five-year enhancement for the earlier felony
conviction, and three 1-year enhancements for three prior prison terms, amounting to 36
years, on count 5; (2) two years eight months—one-third of the doubled middle term—on
count 1, to be served consecutively; (3) two years—one-third of the doubled middle
term—on count 6, to be served consecutively; and (4) the doubled upper term of six years
on count 3, to be served concurrently. The court stayed execution of punishment on the
remaining counts.



                                              2.
erroneous ruling on the relevance objection did not result in a miscarriage of justice; (3)
the defendant forfeited his unnecessary restraint claim; and (4) the court did not abuse its
discretion when it imposed the maximum restitution fine.
                               STATEMENT OF FACTS
I.     Prosecution Case-in-Chief.
       On June 3, 2011, sometime after 1:00 p.m., Edward Wade, Jr., returned to his
apartment at 5212 North Valentine Avenue, located on the northeast corner of North
Valentine Avenue and West San Jose Avenue in Fresno, California. He noticed that the
front door, which he had closed and locked in the morning, no longer had a deadbolt and
was slightly ajar. In addition, “a lot of metal shavings” were on top of the doormat. As
Wade started to enter the premises, “[t]he door flew open” and he “heard a scream[,] like
a battle cry.” Soon after, he and defendant collided “like football linemen” and ended up
fighting on the ground outside. Wade testified that he did not know defendant prior to
this incident.
       During the struggle, Wade saw some of his personal belongings, including a duffel
bag and .45-caliber semiautomatic handgun, in defendant’s possession. He pinned
defendant, headbutted him, and said, “You took my stuff.” Defendant replied, “You
don’t deserve it.” Wade also remarked, “You’ve got my gun.” Defendant answered,
“Yeah, I’ve got your gun.” At one point, defendant told Wade, “If you let me go, I won’t
take your things.” Wade testified that defendant was coherent.
       When Wade dialed 911 on his cell phone, defendant “became very animated and
struggled hard,” preventing Wade from speaking to the operator. At around 1:30 p.m.,
Oscar Rangel, a neighbor, heard Wade “screaming … for help” and observed him and
defendant “bleeding and fighting” on the ground. Rangel hurried to his apartment and
called 911.4

4      The jury listened to a recording of Rangel’s 911 call.



                                             3.
       Defendant eventually broke Wade’s cell phone and pulled out a four-inch multi-
tool blade, compelling Wade to withdraw. As defendant lunged, Wade “backed into the
apartment,” “used [the front door] as a shield,” and searched for a weapon. After he
failed to find one, he peeked from behind the door and saw defendant pointing the stolen
firearm at him. Wade slammed the door, jumped out of the line of fire, and waited for
about one minute. He went back outside and spotted defendant leaving the apartment
complex. Wade subsequently called 911 from his home phone.5
       At approximately 1:34 p.m., Officer Mark Sotelo responded to a call of a burglary,
during which the suspect swiped the victim’s handgun. He drove northbound on North
Valentine Avenue past West San Jose Avenue and encountered defendant, who matched
the suspect’s description, carrying nylon bags and a backpack and walking southbound
on the opposite side of the street. Sotelo executed a U-turn and, using his vehicle’s
public address system, ordered defendant to raise his hands in the air. Defendant
complied. Sotelo exited the vehicle and ordered defendant to lie face down on the
ground. Defendant again complied. When Sotelo asked where the firearm was hidden,
defendant revealed that “it was in his left front pocket.”
       Officers John Jensen and Gabriel Ramirez joined Sotelo, detained defendant, and
secured the gun. Ramirez searched defendant and found a small pocket knife and the
multi-tool. Sotelo testified that defendant, though “nervous,” “was very articulate and
clear” and did not seem to be either disoriented or intoxicated. Ramirez testified that
defendant, who “had blood all over his face,” was “[t]ired,” “frustrated,” and “more
concerned about … tending to his injuries,” but “appear[ed] to understand” and
“respond[ed] appropriately” to questions.




5      The jury listened to a recording of Wade’s 911 call.



                                              4.
       Ramirez met with Wade and sorted the items recovered from defendant. Wade
claimed the handgun,6 bags, pocket knife, collector’s knife, digital camera, camera case,
three bottles of beer, two watches, three sets of keys, sunglasses, and eyeglass case. The
backpack, which did not belong to Wade, contained a Phillips screwdriver, flathead
screwdrivers, box cutters, needle-nose pliers, wire cutters, and a pipe wrench.7
II.    Defense Case-in-Chief.
       At the time of the incident, defendant was prescribed the following drugs: Atripla
for human immunodeficiency virus (HIV), Acyclovir and Norco for shingles, Gabapentin
for peripheral neuropathy, and Tramadol, Motrin, and Marinol for residual pain from
chemotherapy. Excluding Acyclovir and Norco, which he first obtained on June 1, 2011,
he used these medications “for quite a while ….” For over a one-year period, defendant
was “off and on” Atripla because he “didn’t like the way it made [him] feel.” Moreover,
whenever he restarted his Atripla dosage following a layoff, he “felt … drunk for the first
… week or so” and “stumbl[ed] around ….” Defendant was not advised about
Acyclovir’s and Norco’s side effects, but read the “Do not operate heavy equipment”
warning on their bottles’ labels.
       On June 3, 2011, defendant woke up at about 10:30 or 11:00 a.m. because his
mother called to remind him that they were meeting for lunch and shopping for groceries

6      The record confirms that the firearm was registered to Wade.
7      Ramirez testified that these instruments were “burglar tools”:
       “[Big] [f]lathead screwdrivers are … used to pry … open windows, doors,
       … you also can use pliers to pull off screens of windows, … the flatheads
       will get under the screen of a window. You also use some of those items
       just to break the window. [¶] … [¶] [Y]ou can use the wire cutters … to
       cut through something. You can use the flathead to pop something open.
       The box cutter, you can shave around older windows so you can … pop the
       window open ….”
Ramirez added that the tools “could be useful in removing a dead bolt lock.”



                                            5.
at around 1:00 p.m. He could not recall whether he took his doses immediately, but “may
have” since he normally did so “right as [he] woke up, … on an empty stomach.” After
he showered, defendant, who “was in a lot of pain,” ingested his medications, possibly
for a second time.
       Defendant needed to repair his shower’s mixing valve, but had loaned a backpack
containing his pliers, razor knife, socket set, and assorted screwdrivers to a friend.8 He
left his home, located on the corner of East Princeton Avenue and North Wishon Avenue,
and went to his friend’s residence, located on the corner of North Glenn Avenue and East
Simpson Avenue. After he retrieved the backpack, defendant headed to Sears at the
Manchester Shopping Center to purchase a pipe wrench and soldering torch, but “d[id]n’t
remember ever reaching Sears.” Instead, he experienced “a dream like recollection of
being at the Home Depot,” which was “quite a distance” from his house. Next, defendant
recalled “tussling” with Wade, speaking to emergency personnel technicians about his
shingles, and being transported to a police substation and then to jail. He could not
remember anything else, including why he and Wade were fighting, how he received a
bloody nose, whether he made statements to Wade or police officers, or how he arrived at
Wade’s apartment complex.9 Defendant denied “plan[ning] to go to somebody’s
apartment and take property.”
       Dr. Simon Paul, defendant’s physician for at least four years and an HIV
specialist, detailed the various side effects of defendant’s medications. Initial doses of

8      At trial, defendant was shown photographs of the backpack and tools recovered by
the police. He recognized the backpack, screwdrivers, box cutters, needle-nose pliers,
wire cutters, and multi-tool. Defendant did not remember purchasing the pipe wrench,
but acknowledged that it was an item he “would have bought.” He also admitted that he
“kn[e]w how to take a lock off of a door” using these tools.
9      Defendant testified that the North Valentine Avenue and West San Jose Avenue
intersection was five miles away from his house and he did not have a car or driver’s
license.



                                             6.
Atripla may cause “vivid dreams [and] nightmares” during sleep and grogginess during
waking hours. Acyclovir “[d]oesn’t usually” affect memory.” Norco, a narcotic pain
reliever, can “be sedating” and “affect [one’s] speed of … thinking.” Tramadol’s side
effects are similar to Norco’s, but weaker. Gabapentin “can affect people’s
concentration.” Marinol, a cannabinoid-based drug that defendant has used for three to
four years, “can help with pain[] and … make people cloudy in their thinking.” With the
exception of Atripla and Acyclovir, these drugs may also “cause periods of blackout.”
Those experiencing a blackout could still “answer[] questions” and “compl[y] with
commands,” but “[w]on’t remember what they did.” Paul noted that ingesting two or
more medications at once can amplify side effects and “some people have stronger side
effects than others.”
       Paul could not recall whether defendant complained of any side effects from his
current medications. However, about a month before the June 3, 2011, incident,
defendant was prescribed Vicodin, which contains the same ingredients as Norco, and did
not report any problems. Paul did not expect a patient who used Vicodin for a one-month
period and then switches to Norco to experience the latter’s side effects. Paul testified
that patients can develop a tolerance to narcotic pain medications. Such a patient would
need to ingest at least six doses of Norco to sustain a blackout. Paul added that two doses
of Norco are “pretty unlikely” to cause a blackout. In addition, those who “take too much
Norco” are usually lethargic and “wouldn’t be walking around being able to do tasks in a
normal manner.” In response to the prosecutor’s hypothetical questions, Paul opined that
an individual who gathers tools, goes to an apartment, removes a dead bolt, enters the
premises, takes and conceals the occupant’s property, encounters the occupant, engages
in a “vigorous” physical altercation, draws weapons, flees with the stolen property, is
confronted by police, comprehends and complies with commands, provides reasonable
answers to questions, looks awake and alert, and generally acts in a manner appropriate to
the circumstances is not experiencing Norco’s side effects.

                                             7.
III.   Prosecution Rebuttal.
       At the time of the arrest, defendant had blood on his face. When Ramirez asked
about the nature of the bleeding, defendant remarked that the blood “wasn’t his” and
“was from the guy that head-butted him.” Over an hour after he was taken into custody,
defendant was apprised of his Miranda10 rights by Ramirez. He understood these rights,
agreed to speak to Ramirez anyway, and said, “I only have a brief statement. I had the
wrong house, wrong guy. That’s my only statement.” Defendant did not mention that he
had taken medications or that he could not remember what transpired.
                                      DISCUSSION

I.     The Trial Court Properly Refused To Give Defendant’s Requested Jury
       Instructions On Unconsciousness and Involuntary Intoxication.
       A.     Background.
       Defense counsel requested Judicial Council of California Criminal Jury
Instructions (CALCRIM) No. 3427 on involuntary intoxication,11 reasoning that
defendant “need[ed] to continue taking his medication or else there would be some severe
health complications.” The prosecutor countered that defendant “took the drugs
willingly.” The court found “no evidence to support giving that instruction.”




10     Miranda v. Arizona (1966) 384 U.S. 436.
11     CALCRIM No. 3427 reads:
       “Consider any evidence that the defendant was involuntarily intoxicated in
       deciding whether the defendant had the required (intent/ [or] mental state)
       when (he/she) acted. [¶] A person is involuntarily intoxicated if he or she
       unknowingly ingested some intoxicating liquor, drug, or other substance, or
       if his or her intoxication is caused by the (force/, [or] duress/, [or] fraud/,
       [or] trickery of someone else), for whatever purpose [, without any fault on
       the part of the intoxicated person].” (Italics in original.)



                                             8.
       Defense counsel also requested CALCRIM No. 3425 on unconsciousness.12 She
argued:

       “[U]nconsciousness may be caused by a blackout…. [¶]…[¶] Dr. Paul did
       mention that the medication being taken by [defendant] could cause a
       blackout …. [Defendant] testified he was not conscious of his actions, and
       there was no evidence elicited that he knew or should have known that the
       medication could cause a blackout.”
The prosecutor responded:

       “I think that unconsciousness does not apply to voluntary intoxication. I
       don’t think there’s any evidence … of involuntary intoxication in this case.
       He took his drugs, the drugs that he’s been taking for some time, the drugs
       that were essentially the same group of drug that he had been taking for a
       while. Only one was new, but it was just a stronger version of the drugs he
       was taking before…. [T]hey have warning labels on them …. [H]is
       defense goes to voluntary intoxication, which does not apply to
       unconsciousness.”
The court denied the request.
       B.     Analysis.
       “In a criminal trial, the court must give an instruction requested by a party if the
instruction correctly states the law and relates to a material question upon which there is

12     CALCRIM No. 3425 reads:
       “The defendant is not guilty of __________ <insert crime[s]> if (he/she)
       acted while unconscious. Someone is unconscious when he or she is not
       conscious of his or her actions. [Someone may be unconscious even
       though able to move.] [¶] Unconsciousness may be caused by (a
       blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or]
       ____________ <insert a similar condition>). [¶] [The defense of
       unconsciousness may not be based on voluntary intoxication.] [¶] The
       People must prove beyond a reasonable doubt that the defendant was
       conscious when (he/she) acted. If there is proof beyond a reasonable doubt
       that the defendant acted as if (he/she) were conscious, you should conclude
       that (he/she) was conscious, unless based on all the evidence, you have a
       reasonable doubt that (he/she) was conscious, in which case you must find
       (him/her) not guilty.”



                                              9.
evidence substantial enough to merit consideration.” (People v. Barajas (2004) 120
Cal.App.4th 787, 791; see §§ 1093, subd. (f), & 1127.) “Evidence is substantial if a
reasonable jury could find the existence of the particular facts underlying the instruction.”
(People v. Lee (2005) 131 Cal.App.4th 1413, 1426; accord People v. Romo (1990) 220
Cal.App.3d 514, 517.) “‘“In evaluating the evidence to determine whether a requested
instruction should be given, the trial court should not measure its substantiality by
weighing the credibility [of the witnesses] …. Doubts as to the sufficiency of the
evidence to warrant instructions should be resolved in favor of the accused. [Citations.]”
[Citation.]’ [Citation.]” (People v. Tufunga (1999) 21 Cal.4th 935, 944.) “Even so, the
test is not whether any evidence is presented, no matter how weak.” (People v. Petznick
(2003) 114 Cal.App.4th 663, 677.) Where evidence is “‘minimal and insubstantial,’” the
court need not give the requested instruction. (People v. Lee, supra, at p. 1426.)
Whether a particular instruction should have been given in a case is a predominantly legal
question reviewed under the de novo standard. (People v. Cole (2004) 33 Cal.4th 1158,
1217; People v. Waidla (2000) 22 Cal.4th 690, 733.)
       “Unconsciousness, when not voluntarily induced, is a complete defense to a
charged crime.” (People v. Rogers (2006) 39 Cal.4th 826, 887; see § 26, class Four; see
also People v. Babbitt (1988) 45 Cal.3d 660, 693 [unconsciousness negates elements of
voluntariness and intent].) “To constitute a defense, unconsciousness need not rise to the
level of coma or inability to walk or perform manual movements; it can exist ‘where the
subject physically acts but is not, at the time, conscious of acting.’ [Citation.]” (People
v. Halvorsen (2007) 42 Cal.4th 379, 417.)
       We conclude that an unconsciousness instruction was not supported by substantial
evidence. The record reflects that on June 3, 2011, defendant arrived at Wade’s
apartment in the middle of the day with a backpack containing a Phillips screwdriver,
flathead screwdrivers, box cutters, needle-nose pliers, wire cutters, and a pipe wrench.
Utilizing these tools, he removed the front door’s deadbolt. Inside Wade’s residence,

                                             10.
defendant collected the .45-caliber semiautomatic handgun, nylon bags, knives, digital
camera, camera case, beer, watches, keys, sunglasses, and eyeglass case, placing most of
the items in the aforementioned bags. When Wade returned unexpectedly, defendant,
with goods in tow, tried to run past him. Instead, the two collided and fought on the
ground outside. During the altercation, defendant admitted that he took Wade’s personal
belongings and tried to persuade Wade to release him in exchange for the stolen property.
However, when Wade attempted to call 911 on his cell phone, defendant thwarted the
call, broke the phone, and tried to stab Wade with a multi-tool blade. After Wade
retreated into his apartment, defendant pulled out the handgun and aimed it at Wade.
Once Wade vanished from view, defendant fled the scene.
       When the defendant was confronted by Officer Sotelo, he not only obeyed
commands to raise his arms in the air and lie face down on the ground, but responded
truthfully to Sotelo’s query as to the whereabouts of the firearm. Defendant also
answered Officer Ramirez’s question about the blood on his face, specifying that it
belonged to “the guy that head-butted him.” Finally, following a Miranda warning, he
confessed, “I had the wrong house, wrong guy.” (Cf. People v. Carlson (2011) 200
Cal.App.4th 695, 704 (Carlson).) The “complicated and purposive nature of
[defendant’s] conduct” (People v. Halvorsen, supra, 42 Cal.4th at p. 418), “plus the
observations of witnesses who interacted with h[im]” (Carlson, supra, at p. 704; see
People v. Nihell (1904) 144 Cal. 200, 202 [“[Individuals] are presumed to be conscious
when they act as if they were conscious ….”]), indicated that defendant “engaged in more
than mere physical movement, thereby dispelling any reliance on an unconsciousness
theory” (Carlson, supra, at p. 704).
       Defendant maintains that an unconsciousness instruction was warranted on the
basis of his and Dr. Paul’s testimonies. We disagree. First, Paul testified that ingestion
of certain medications, namely Norco, may cause a blackout. Nonetheless, he suggested
that defendant was not unconscious as a result of these drugs at the time of the June 3,

                                            11.
2011, incident. Paul pointed out that defendant was previously prescribed Vicodin,
which contains the same ingredients as Norco, and did not report any side effects. He
opined that a similarly-situated patient would need to ingest at least six doses of Norco—
three times the amount defendant purported to take on the morning of the incident—
before he or she could sustain a blackout. Paul also opined that a person who uses tools
to remove the deadbolt of an apartment’s front door, takes the occupant’s personal
belongings inside, encounters and fights the occupant, wields weapons, flees with the
stolen property, obeys a police officer’s commands, answers police officers’ questions,
and appears awake and alert is not experiencing a Norco-induced blackout. Second,
although defendant testified that he could not remember what occurred between his
“dream like recollection of being at the Home Depot” and his “tussling” with Wade, such
testimony “standing alone” and “without more” constitutes minimal and insubstantial
evidence. (People v. Rogers, supra, 39 Cal.4th at p. 888; accord People v. Coston (1947)
82 Cal.App.2d 23, 40; see People v. Heffington (1973) 32 Cal.App.3d 1, 10 [no
“ineluctable” rule that a defendant’s inability to remember or hazy recollection supplies
an evidentiary foundation for a jury instruction on unconsciousness].)
       We also conclude that the court properly refused to give an involuntary
intoxication instruction. The purpose of this instruction would have been to establish
involuntary intoxication as the source of defendant’s unconsciousness on June 3, 2011.
(See People v. Mathson (2012) 210 Cal.App.4th 1297, 1313 [“[I]nvoluntary intoxication
that results in unconsciousness is a complete defense to a crime.”].) In view of the
minimal and insubstantial evidence supporting defendant’s claim of unconsciousness,
however, such an instruction became gratuitous.




                                            12.
II.    The Trial Court’s Erroneous Ruling on the Prosecutor’s Relevance Objection
       to a Question About Whether Defendant’s Prescription Medications Could
       Cause Somnambulism Did Not Result in a Miscarriage Of Justice.

       A.     Background.
       On redirect examination of Paul, defense counsel asked, “Do any of these
medications ever cause any sort of sleep walking activity?” The prosecutor raised a
relevance objection as Paul stated, “Not --.” The court asked defense counsel if she
wished to be heard. She replied, “No.” Thereafter, the court sustained the objection.
       B.     Analysis.
       “Generally, ‘all relevant evidence is admissible.’” (People v. Cottone (2013) 57
Cal.4th 269, 283, quoting Evid. Code, § 351.) “‘Relevant evidence’ means evidence …
having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210; see People v.
Wilson (2006) 38 Cal.4th 1237, 1245 [“‘“The test of relevance is whether the evidence
tends, ‘logically, naturally, and by reasonable inference’ to establish material facts such
as identify, intent, or motive.”’”].)
       “A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous exclusion of evidence unless the
court which passes upon the effect of the error or errors is of the opinion that the error or
errors complained of resulted in a miscarriage of justice and it appears of record that …
[¶] [t]he substance, purpose, and relevance of the excluded evidence was made known to
the court by the questions asked, an offer of proof, or by any other means.” (Evid. Code,
§ 354, subd. (a).)
       We find that the court erroneously sustained the prosecutor’s relevance objection.
At trial, defendant testified that he could not recall the June 3, 2011, incident in its
entirety. He subsequently produced Dr. Paul as an expert witness to establish that he was
rendered unconscious by prescription medications. On direct examination, Paul attested
that some of defendant’s medications could trigger blackouts. Thus, by the time defense

                                              13.
counsel asked Paul whether these same medications could also bring about
somnambulism, the court had been made aware of defendant’s unconsciousness defense.
It should have overruled the prosecutor’s objection because the contested question, which
concerned the exact mechanism of drug-induced unconsciousness, was germane. (See
People v. Mathson, supra, 210 Cal.App.4th at p. 1315; People v. Ferguson (2011) 194
Cal.App.4th 1070, 1083 [“An unconscious act, as defined ‘within the contemplation of
the Penal Code is one committed by a person who because of somnambulism … or
similar cause is not conscious of acting and whose act therefore cannot be deemed
volitional.’”].)13
       By constitutional mandate, “[n]o judgment shall be set aside, or new trial granted,
in any cause, on the ground of … the improper admission or rejection of evidence, …
unless, after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13; accord Evid. Code, § 354, subd. (a).) “‘[A] “miscarriage of justice”
should be declared only when the court, “after an examination of the entire cause,
including the evidence,” is of the “opinion” that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.’” (Clifton v. Ulis (1976) 17 Cal.3d 99, 105-106, quoting People v. Watson (1956)
46 Cal.2d 818, 836; accord People v. Callahan (1999) 74 Cal.App.4th 356, 363.)
       We conclude that the court’s ruling on the relevance objection, though erroneous,
did not result in a miscarriage of justice. Even if the court had overruled the objection
and Paul had testified that defendant’s medications could cause sleepwalking, it was not
reasonably probable that defendant would have received a more favorable verdict. The


13     Since the relevance of the excluded question had been disclosed by the form of the
question itself and defendant’s and Paul’s testimonies, an offer of proof was unnecessary.
(See People v. McGee (1947) 31 Cal.2d 229, 242.)



                                             14.
testimonies of Wade, Sotelo, Ramirez, and even Paul established that defendant was not
unconscious during the June 3, 2011, incident.
III.   The Defendant Forfeited His Unnecessary Restraint Claim.
       A.     Background.
       On March 19, 2012, defense counsel filed a motion in limine requesting an order
to “unshackle[] [defendant] at all times while in view of the jury,” inter alia. The matter
was discussed at a March 19, 2012, pretrial hearing:
              “THE COURT: … [¶] … [¶] … I will say first of all, … in the
       presence of the jury the general principle is that the defendant’s not going
       to be restrained or shackled in any way. And as you know, of course, the
       court would have to find a manifest need to do so. I do note, however, and
       I want to talk about here, the fact that we have a second case that’s sent to
       us along with this trial, which is a pending case, as I looked at it, for a
       battery on a correctional officer. So I don’t know right now whether the
       sheriff’s department is going to ask for a hearing as to whether the
       defendant ought to be shackled during the course of the trial in light of that
       behavior. [¶] And I do want to ask, first of all, Deputy Hadley, have you
       ever h[e]a[r]d anything from the sheriff’s department about wanting such a
       hearing?
              “THE BAILIFF: No.
              “THE COURT: I’ll let you talk to them over the course of the
       afternoon if you think you need to. All I will say about this subject here,
       counsel, that sometimes it is the practice of lawyers together with the
       deputies to agree to some kind of a silent tethering under the table. That’s
       between you and the deputies. I’m not ordering any of that. But that’s
       something that you can do to limit the number of deputies they have in the
       courtroom pursuant to their policies. That’s just your judgment to make.
             “[DEFENSE COUNSEL]: Typically that is the judgment I do make,
       Your Honor. And I’ll discuss that with Deputy Hadley when we have a
       moment.
              “THE COURT: Great. But other than asking for a formal hearing,
       especially in light of this other charge, … I’ll say I will grant your request.
       And that the defendant won’t be shackled. And the court would have to
       find a manifest need to do so. All right?
              “[DEFENSE COUNSEL]: Yes, Your Honor.”



                                             15.
       On May 25, 2012, defense counsel filed another motion in limine requesting an
order to “unshackle[] [defendant] at all times while in view of the jury.” The matter was
discussed at a May 29, 2012, pretrial hearing:
               “[DEFENSE COUNSEL]: [Y]our Honor, I understand it’s the
       Sheriff’s deputies policy typically to either keep a silent tether at the
       defendant’s feet and keep his hands and waist unshackled, or they need to
       have additional staff in the courtroom. I would prefer that he have the
       silent tether at his feet out of the view of the jury pool rather than have
       additional deputies in the courtroom.
              “THE COURT: All right. And so, you have no objection to having
       him silently tethered to the table; is that correct[?]
              “[DEFENSE COUNSEL]: I don’t.
              “THE COURT: All right. And so, we’ll proceed in that fashion.”
       On May 30, 2012, following jury selection and preceding presentation of
evidence, the court inquired as to the visibility of defendant’s silent tether outside of the
jury’s presence:
               “THE COURT: … First of all, in regards to where the alternate is
       sitting, … I just want to make sure that the alternate cannot see that your
       client is restrained to the table. Have you been able to view that?
              “[DEFENSE COUNSEL]: I haven’t, but for all practical purposes,
       the entire jury pool was seated behind my client, and my client was visible
       to everybody throughout.
              “THE DEFENDANT: They’ve already seen me, your Honor.
               “[DEFENSE COUNSEL]: And we’ve been brought in and out of
       the courtroom without my client, and so, they know that I’m not with my
       client in the hallway, and … when they got here this morning, they were all
       packed in front of the door, so I don’t know. No, they can’t see from here.
       So, any further visuals will be eliminated.
              “[PROSECUTOR]: I know there is --
              “THE COURT: Well, I’m not sure that anyone from the audience
       could see.
              “[PROSECUTOR]: I certainly, from sitting, and I invite you to
       stand up, I don’t think you can see anything because of the bar. Even when
       standing, unless they’re zeroing in on his legs, because the tether is down
       below the table, it is a silent tether, I don’t know that anybody can see.


                                             16.
              “[DEFENSE COUNSEL]: Okay. Thank you. The alternate seat is
       fine. Thank you for asking.
              “THE COURT: Yes. All right. And so …, … I think we’ve earlier
       addressed the issue of not having a restraint versus having additional
       deputies, and it was my understanding that the defendant and defense
       counsel opted to not have additional deputies, and so, I’ll -- anything that
       you’d like to put on the record or --
                “[DEFENSE COUNSEL]: No, that was our option. That was our
       decision. [¶] … [¶] If I could, please, your Honor. My client did just
       mention to me that he would have preferred -- regarding security, it was my
       request that we use the silent tether instead of having extra deputy staff, and
       I believe we had discussed that prior to making that decision. [Defendant]
       is telling me he would have preferred extra deputy staff. I think that that’s
       … a strategic decision for the attorney to make, and I will take full
       responsibility for making that decision, and that’s what I decided, but he
       wanted me to make that clear.
              “THE COURT: Very well. Anything that you’d like to put on the
       record in that regard …?
              “[PROSECUTOR]: No, your Honor. I think that is a strategic
       decision by Counsel.
              “THE COURT: All right. And I accept that as a strategic measure
       by Counsel, and with that, I’ll have Madam Clerk go and have the jury
       report to the courtroom.”
       B.     Analysis.
       “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.” (§ 688.)
“[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; cf. People v. Jenkins
(2000) 22 Cal.4th 900, 996 [“Measures such as shackling … are inherently prejudicial
and are subject to exacting scrutiny …, but precautions such as the use of additional
armed security forces are not, because of ‘the wider range of inferences that a juror might
reasonably draw from the officers’ presence.’”].) Nevertheless, a defendant must object




                                            17.
to the use of physical restraints or the claim will be deemed forfeited on appeal. (People
v. Ward (2005) 36 Cal.4th 186, 206; People v. Stankewitz (1990) 51 Cal.3d 72, 95.)
       Here, we find that defendant forfeited his claim. Defense counsel filed a motion
against physical restraints. At a pretrial hearing, the court recognized defendant’s
involvement in a pending case alleging battery of a correctional officer, surmised that law
enforcement personnel might request a separate hearing on the matter of restraints, and
advised that attorneys sometimes agree to restrain their clients via silent tether in order to
reduce the number of deputies in the courtroom. After defense counsel stated that she
would speak with the bailiff about a possible arrangement, the court granted her motion,
pronouncing that “defendant won’t be shackled” without a showing of manifest need.
Yet, at a subsequent pretrial hearing on a second motion, defense counsel informed the
court that she affirmatively consented to defendant’s restraint via silent tether in lieu of
additional officers. When the court asked whether she objected to the restraint, she said,
“I don’t.” (See People v. McWhorter (2009) 47 Cal.4th 318, 375 [“[A]lthough defense
counsel made the request that defendant be unshackled, he thereafter acquiesced in the
remedy … and made no further objection, thereby waiving any claim on appeal with
respect to the absence of further inquiry into the manifest need for the concealed leg
restraints.”]; People v. Majors (1998) 18 Cal.4th 385, 406 [“‘It is settled that the use of
physical restraints in the trial court cannot be challenged for the first time on appeal….’
[N]ot only did defendant fail to object to the security measures taken at trial, he
affirmatively consented to them.”].) In addition, before the trial commenced, defense
counsel confirmed her choice on strategic grounds, notwithstanding defendant’s apparent
preference for extra deputies. (See People v. Miller (1990) 50 Cal.3d 954, 1004




                                             18.
[dissatisfaction with a particular security measure does not constitute an express
objection].)14

IV.    The Trial Court did not Abuse Its Discretion When It Imposed The
       Maximum $10,000 Restitution Fine.

       A.        Background.
       At the November 16, 2012, sentencing hearing, the court found that defendant’s
“current crimes involved great violence, great bodily harm, threat of great bodily harm,
and high degree of cruelty and viciousness” and ordered him to pay a $10,000 restitution
fine, inter alia. Defense counsel asked the court to stay the fine “in light of the time that
[defendant] will be spending in custody.” The court denied the request.
       B.        Analysis.
       “In every case where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record.” (§ 1202.4, subd. (b).)15
“The restitution fine shall be set at the discretion of the court and commensurate with the
seriousness of the offense. If the person is convicted of a felony, the fine shall not be less
than two hundred forty dollars ($240) starting on January 1, 2012, … and not more than


14     Alternatively, defendant claims ineffective assistance of counsel. (See generally
Strickland v. Washington (1984) 466 U.S. 668.) We reject his contention. “On direct
appeal, a conviction will be reversed for ineffective assistance only if … the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission ….” (People v. Mai (2013) 57 Cal.4th 986, 1009; see also People v. Jones
(2003) 29 Cal.4th 1229, 1254 [“‘“[T]here is a ‘strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’”’”].) The record
before us does not affirmatively disclose the lack of a rational tactical purpose: defense
counsel’s remarks implied that she opted for the silent tether because the presence of
additional deputies in the courtroom would have been more detrimental to defendant.
15     “A defendant’s inability to pay shall not be considered a compelling and
extraordinary reason not to impose a restitution fine.” (§ 1202.4, subd. (c), italics added.)



                                             19.
ten thousand dollars ($10,000).” (Id., subd. (b)(1); see People v. Urbano (2005) 128
Cal.App.4th 396, 406 [“Within the range authorized by statute, the court has wide
discretion in determining the amount.”].) “In setting the amount of the fine … in excess
of the minimum …, the court shall consider any relevant factors, including, but not
limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and
the circumstances of its commission, any economic gain derived by the defendant as a
result of the crime, the extent to which any other person suffered losses as a result of the
crime, and the number of victims involved in the crime.” (§ 1202.4, subd. (d).) “In
setting a felony restitution fine, the court may determine the amount of the fine as the
product of the minimum fine … multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.” (Id., subd. (b)(2).)
       In the instant case, the court determined that defendant’s crimes were violent,
harmful, cruel, and vicious. The seriousness and gravity of the offenses alone may
support the maximum $10,000 restitution fine. (See People v. DeFrance (2008) 167
Cal.App.4th 486, 505.) Furthermore, under the “permissive formula” set forth in section
1202.4, subdivision (b)(2) (People v. Urbano, supra, 128 Cal.App.4th at p. 406), a
$10,000 fine was merited in view of defendant’s total number of felony convictions and
40-year-eight-month sentence.16 Therefore, we conclude that the court did not abuse its
discretion.17


16    In fact, in the absence of a statutory cap (see § 1202.4, subd. (b)(1)), defendant’s
fine would have totaled $58,560.
17      We note that the court imposed the upper term, inter alia, on count 5. (Ante, fn.3;
see People v. McGhee (1988) 197 Cal.App.3d 710, 717 [“[W]hen the circumstances of a
particular case are such that imposition of the upper term of imprisonment for a particular
crime is justified, a trial court does not abuse its discretion in imposing the maximum
restitution fine provided by law.”].)



                                             20.
      Defendant contends on appeal that the restitution fine was improper in light of his
period of imprisonment, health, and inability to pay. At the sentencing hearing, however,
defense counsel did not oppose the fine. She simply requested a stay, which was
correctly denied. (See People v. Woods (2010) 191 Cal.App.4th 269, 272 [“There is no
statutory authority which allows the … restitution fine … to be stayed.”].) In the absence
of an objection at the hearing, defendant forfeited his argument. (People v. Nelson
(2011) 51 Cal.4th 198, 227.)
                                    DISPOSITION
      The judgment is affirmed.

                                                               _____________________
                                                                     LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
PEÑA, J.




                                           21.
