Filed 4/8/16 P. v. Avila CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B257654

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA410376)
         v.

DANIEL AVILA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis
J. Landin, Judge. Affirmed in part; reversed in part with directions.
         Christine C. Shaver and David M. Thompson, under appointments by the Court of
Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael C. Keller,
Jonathan J. Kline and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.
                                    I. INTRODUCTION


       A jury convicted defendant, Daniel Avila, of 20 felony offenses, all of which he
committed while in custody: 3 counts of attempted premeditated murder (Pen. Code,1 §§
664/182, subd. (a)) (counts 1, 2, 4); 8 counts of assault on a peace officer with a deadly
weapon or by means likely to produce great bodily injury (§ 245, subd. (c)) (counts 5-
12); 1 count of possessing a shank in jail (§ 4574, subd. (a)) (count 13); 1 count of battery
on a peace officer by gassing (§ 243.9, subd. (a)) (count 14); 2 counts of battery upon a
custodial officer (§ 243.1) (counts 16, 23); 1 count of resisting an executive officer (§ 69)
(count 17); 3 counts of attempted criminal threats (§§ 664, 422, subd. (a)) (counts 18, 20,
24); and 1 count of attempting to threaten a public officer (§§ 664, 71, subd. (a)) (count
19). The jury further found defendant: personally used a deadly weapon, a shank, in the
commission of the attempted murders and six of the aggravated assaults (§ 12022, subd.
(b)(1)); inflicted great bodily injury on the victim in counts 2 and 6 (§ 12022.7, subd.
(a)); and had 14 prior criminal threats convictions (§ 422, subd. (a)) within the meaning
of sections 667, subdivision (d) and 1170.12, subdivision (b). Defendant was sentenced
to 124 years to life in state prison plus 22 years.
       Defendant argues it was a prejudicial abuse of discretion and a violation of his
constitutional due process and fair trial rights to visibly restrain him during trial.
Defendant further asserts there was insufficient evidence of attempted premeditated
murder as charged in counts 1, 2 and 4. We modify the oral pronouncement of judgment
to impose the Government Code section 70373, subdivision (a)(1) court facilities
assessment as to each count. We modify the judgment to omit the section 12022,
subdivision (b)(1) enhancements as to counts 7 and 9 because the jury found those
allegations not true. We reverse the determinate sentences imposed as to counts 13, 14,
16, 17 and 23. Upon remittitur issuance, defendant is to be resentenced on the

1      Further statutory references are to the Penal Code unless otherwise noted.



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determinate counts utilizing the principal and subordinate term methodology of section
1170.1, subdivision (a). We affirm the judgment in all other respects.


II. THE EVIDENCE CONCERNING THE DECISION TO RESTRAIN DEFENDANT
                                    AND THE MERITS


                   A. Defendant’s History of Making Criminal Threats


       The first argument raised by defendant is that he should not have been restrained
during the trial. Thus, some of our recitation of the facts includes evidence considered by
the trial court on that issue. At the time of the incidents at issue here, defendant was 6
feet, 4 inches tall and weighed at least 300 pounds. He had an extensive history of
making death threats against prosecutors and defense attorneys. (See People v. Avila
(June 10, 2014, B247954 [nonpub. opn.]; People v. Avila (2013) 212 Cal.App.4th 819;
People v. Avila (2011) 191 Cal.App.4th 717; People v. Avila (Nov. 21, 2011, B229814)
[nonpub. opn.].) We briefly outline that history. The chain of events began in February
2005 when defendant was charged in Ventura County Superior Court case No.
2005002781 with computer fraud and identity theft. (§§ 502, subd. (c)(1), 530.5, subd.
(a); People v. Avila, supra, B229814, typed opn. at p. 2.) The prosecution alleged that in
November 2004, during a campaign for a city council seat, defendant sent harassing text
messages purportedly from a rival candidate. (Ibid.) These charges ultimately were
dismissed. The dismissal was affirmed on appeal. (People v. Avila, supra, B229814,
typed opn. at p. 5.)
       While in custody awaiting trial in the fraud case, defendant repeatedly threatened
to kill a Ventura County deputy district attorney, Marc Leventhal. (People v. Avila,
supra, 212 Cal.App.4th at pp. 822-823; People v. Avila, supra, 191 Cal.App.4th at pp.
720-721.) On July 25, 2008, defendant was charged in Ventura County Superior Court
case No. 2008030495 with making a criminal threat and threatening Mr. Leventhal. (§§
422, 76, subd. (a).) Also on July 25, 2008, a deputy public defender was appointed to

                                              3
represent defendant. On December 15, 2008, defendant, in writing, threatened to kill the
deputy public defender. (People v. Avila, supra, 191 Cal.App.4th at p. 721.) Three days
later, on December 18, 2008, defendant was charged in Ventura County Superior Court
case No. 2008052740 with attempted criminal threat and threatening the deputy public
defender. (§§ 664, 422, 76, subd. (a); see People v. Avila, supra, 191 Cal.App.4th at p.
722.) In Ventura County Superior Court case No. 2010010591, defendant was convicted
of six counts of making criminal threats (§ 422) and six counts of threatening a public
official (§ 76, subd. (a)). (People v. Avila, supra, 212 Cal.App.4th at p. 822.) The
victims were six deputy district attorneys. (People v. Avila, supra, 212 Cal.App.4th at p.
822.) The judgment was affirmed on appeal. (Id. at p. 829.)
         In Los Angeles Superior Court case No. BA366400, defendant was convicted of
eight counts of making criminal threats. (§ 422.) The victims were Deputy Attorneys
General Rama Maline, Michele Wong and Jonathan Kline and Deputy District Attorneys
Kasey Sirody, Rachelle Dean, Melissa Suttner and Joann Roth. In addition, defendant
was convicted of making a criminal threat directed at Mr. Leventhal. The jury also found
hate crime allegations to be true as to two of the eight counts. (§ 422.55.) The details of
those threats are set forth in part in People v. Avila (Aug. 27, 2015, B258329) [nonpub.
opn.].


                                  B. The Present Charges


              1. December 14, 2011, battery upon a custodial officer, count 23


         Deputy Brian Alley was performing a security check at the Men’s Central Jail on
December 14, 2011. As Deputy Alley approached, defendant yelled, “You fucking
bitch.” Defendant twice threw what looked like urine at Deputy Alley. Deputy Alley
was struck on his left side. Defendant was charged with battery by gassing in violation of
section 243.9, subdivision (a) which provides, “. . . ‘[G]assing’ means intentionally
placing or throwing, or causing to be placed or thrown, upon the person of another, any

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human excrement or other bodily fluids or bodily substances or any mixture containing
human excrement or other bodily fluids or bodily substances that results in actual contact
with the person’s skin or membranes.” Defendant denied engaging in the charged
behavior. Defendant testified, “I didn’t . . . throw anything on him.”


                 2. December 30, 2011, attempted threats, counts 20, 21


       Defendant wrote a letter dated December 30, 2011, addressed to Sheriff’s
Lieutenant Steve Whitmore. The letter read in part, “If I [am] move[d] back to [county
jail] without a meaningful chance to de-brief on tape, with credence given, I ‘will spear’
a deputy on fish row, just like a salmon.” (Italics added.) Fish row was the area where
defendant was housed.


  3. May 28, 2012, attempted threats against superior court judges and federal or state
                               prosecutors, counts 18 and 19


       Defendant wrote a May 28, 2012 letter that stated in part: “. . . I want to make it
clear that if any judicial officer of the Los Angeles County Superior Court upholds or
grants the sheriff’s decision to revoke my pro per status or privileges, revokes my pro per
status or privileges on his or her own, or modifies the current orders relating to my
telephone access, I ‘WILL ASSASSINATE’ that judicial officer. [¶] If any state or
federal prosecutor files charges related to the above death threat, or uses it as probative
evidence such as Evid. Code 1101(b), I ‘WILL ASSASSINATE’ that prosecutor.”
Deputy Smoldt was helping two other deputies waist-chain defendant as ordered by a
lieutenant. The order was given in defendant’s presence. Deputy Smoldt heard another
deputy yell, “Watch out.” Deputy Smoldt pivoted to the right. Defendant kicked Deputy
Smoldt in the left hip. Deputy Smoldt fell backwards. Defendant began to spit at Deputy
Smoldt. Had Deputy Smoldt not turned aside, he would have been kicked in the groin.



                                              5
        Defendant denied kicking Deputy Smoldt. Defendant testified, “I don’t remember
[Deputy] Smoldt there at all.” Defendant denied kicking anybody on June 4, 2012.
Defendant told the jury he was facing a wall at the time, so there was no way he could
have kicked anybody.


                4. July 24, 2012, battery upon a custodial officer, count 16


        A custody assistant, Donald Hinton, was delivering mail at the Men’s Central Jail
on July 24, 2012. Defendant threw a liquid at Mr. Hinton. Mr. Hinton was hit on his left
side. Defendant was laughing. He said, “I got you.” Mr. Hinton testified: “It’s mostly
common when a staff member gets gassed that these inmates use urine or feces or any
body fluid.” Defendant denied throwing liquid at Mr. Hinton. Defendant testified Mr.
Hinton was lying.


   5. March 29, 2013, attempted murder (counts 1, 2, 4), assault (counts 5-12), weapon
                       possession (count 13) and battery (count 14)


                                       a. the battery


        On March 29, 2013, Deputy Cecilio Felix was escorting inmates to the showers.
Deputy Felix opened defendant’s tray slot. This was done in order to handcuff defendant.
Defendant threw urine at Deputy Felix. Deputy Felix was struck in the chest, stomach
and groin areas. Defendant attempted to throw a second container of liquid at Deputy
Felix. A videotape of the incident was shown to the jury. It did not include any audio
recording. One hour later, defendant spoke to Lieutenant Edwin Alvarez. Defendant
admitted assaulting Deputy Felix. Defendant said he would not leave his cell, had a
shank and would use it. Defendant’s statements led to a decision to extract him from his
cell.



                                             6
       At trial, defendant denied throwing urine on Deputy Felix. Defendant testified he
threw water, not urine. Defendant spoke to Deputy Felix. Defendant described what he
said in that conversation: “. . . I thrown water on you because I want to get a
misdemeanor. You’re going to have me here for another year. If you don’t add-charge
me and I go to prison, then you’re going to have to bring me back anyway. So if you
don’t charge me, either you charge me now or never . . . .” At another point, defendant
testified he wanted to be “add-charged” for the urine throwing incident: “[I] had two and
a half years in prison, I wanted to do misdemeanor time here and let my prison sentence
expire, bail out at the misdemeanor fee of $2[,]500, work with the judge to continue my
sentencing hearing past my prison release date, go up to prison, turn around so that I
would receive a windfall of credits because the two systems don’t communicate, the state
and the county.” Defendant further testified he was denied exculpatory evidence when
Deputy Adam Vazquez threw the milk carton away. Defendant later spoke to Lieutenant
Alvarez about the incident. In that conversation, defendant denied he had a weapon.


                                   b. the extraction plan


       As noted above, the determination was made to extract defendant from his cell.
Sergeant Jesus Rojas was the supervisor in charge of the extraction team. Sergeant Rojas
assigned seven deputies to the team—Blake Orlandos, Steven Provenzano, Adam
Machado, Patrick Allen, Frank Quintana, Sunny Solomua and Anthony Casarez. The
floor deputy, Daniel Martinez, and a videographer, Deputy Sam Carranza, were also
present. The extraction team deputies were chosen for their size and athleticism. Deputy
Orlandos, for example, was 6 feet, 3 inches tall and weighed 250 pounds. Deputy
Provenzano was 6 feet tall and weighed 225 pounds. Deputy Allen was 6 feet tall and
weighed 220 pounds.
       Sergeant Rojas described the extraction plan to the jury: “The intent of the
extraction is to pin [the inmate] being extracted using shields. You drive the person back
[into the cell], pin them, pull their legs, bring them down, hold them down, flip them

                                             7
over, hook them up, bring them out. The idea is to use minimal force. Use body weight
holding people down. Using people’s strength to hold -- to be able to turn them and get
their arms secured behind their back.” Deputies Orlandos and Provenzano were described
as the front-line men. They were tasked with forcing defendant back into his cell and
pinning him against the wall. Both deputies were armed with shields and were wearing
helmets. Sergeant Rojas also wore a helmet. Deputies Quintana, Allen and Solomua
were the “capture” deputies. They were assigned the “hands on” job of gaining control of
defendant’s limbs and restraining him. Deputy Allen’s job was to handcuff defendant.
The handcuffing was to occur once defendant was secure on the floor. Deputy Machado
was armed with pepper spray and a rubber bullet gun. Deputy Casarez was armed with a
taser.


                                       c. the extraction


         Prior to the extraction, defendant attached a shank to his right wrist. Defendant
bound the shank to his wrist so he would not lose possession of it during any altercation.
Sergeant Rojas described the weapon as consisting of, “Several razors hardened together
at the tip with the harder portion, which I believe is a pencil, and wrapped with a large
amount of string to keep them in place . . . .”
         Defendant was given an opportunity to voluntarily exit his cell. Sergeant Rojas
spoke directly to defendant. Sergeant Rojas testified: “[H]e clearly understood I was
speaking to him, and he asked me why. I explained to him that the decision was made by
the commanders based on earlier events that he was coming out of his cell. At that point
he just stared at me. He looked at me. He clearly was looking, and we . . . I’m looking at
him. He’s looking at me. I saw I wasn’t gaining any ground. Since the decision had
been made, I brought my team forward.” Defendant was told he needed to be seen by the
jail medical staff. Defendant gave no indication he would comply. Sergeant Rojas
brought the extraction team forward. Sergeant Rojas, Deputy Orlandos and Deputy
Provenzano stood in the corridor directly in front of defendant’s cell door. The other

                                               8
deputies fanned out behind them. They converged in an area approximately four feet
deep from the cell door to the hallway wall behind them.
       At Sergeant Rojas’s direction, Deputy Machado twice introduced pepper spray
into defendant’s cell. On the videotape, the deputies can be heard coughing. But
defendant had wrapped his face with a cloth and did not comply. Sergeant Rojas ordered
Deputy Machado to prepare to fire rubber bullets at defendant. The sergeant then
directed that defendant’s electronic cell door be opened just far enough, three to four
inches, to allow Deputy Machado to act. The moment the cell gate began to slide open,
defendant burst forward, forced the gate open and powered his way out of the cell.
Sergeant Rojas testified: “As soon as that door started to slide open, somehow
[defendant] was able to open this door from rage, anger . . . . These doors take some
effort to open. He was able to open it.” Defendant was screaming and yelling. The
deputies saw the shank in defendant’s hand. Deputy Martinez yelled: “Shank, shank.
He’s got a shank.” Defendant was swinging the shank up and down. The deputies
variously described defendant’s action with the shank as a “tomahawk,” “stabbing,”
“slicing” and “hacking” motion. Deputy Orlandos testified, ‘“[W]hen the [cell] gate
opened, [defendant] came out with like a tomahawk motion, raising his right hand above
his head and thrusting down with a slashing device.” Deputy Provenzano tried to pin
defendant’s arm with a shield. Deputy Provenzano testified, “. . . I pushed with all my
might, and it was like nothing.” Deputies Allen and Quintana moved forward to assist
Deputy Provenzano. Deputy Allen pushed on Deputy Provenzano’s back. Deputy Allen
pushed as hard as he could. Deputy Allen was trying to keep Deputy Provenzano in
place. Sergeant Rojas and Deputy Orlandos reached in and tried to grab defendant’s arm.
Deputy Solomua punched defendant in the face with a closed fist. But defendant
continued to strike. Defendant was overpowering Deputies Orlandos and Provenzano.
Deputy Machado fired rubber bullets hitting defendant in the upper chest. But the bullets
did not deter defendant. The videotape shows Sergeant Rojas and Deputies Orlandos and
Provenzano up against the cell door. This occurred as defendant forced his way out of
the cell. The deputies closed in, trying to keep defendant contained. The deputies stood

                                             9
up against each other, chest to back, from the cell door to the wall, all pushing forward.
But defendant was forcing them back, up against the wall. Sergeant Rojas ordered
Deputy Casarez to use the taser on defendant.
       Eventually the deputies pulled defendant to the ground where the struggle
continued. Defendant punched and kicked and tried to get up. Defendant continued to
hack at the deputies with the shank. Deputy Martinez repeatedly told defendant to calm
down and let go of the shank. Finally, 10 to 20 seconds after the altercation began, the
deputies succeeded in restraining defendant. The jury viewed videotape and still
photographs of the extraction.
       Defendant testified that he no idea he was going to be moved from his cell. The
first time defendant realized he would be removed was when the extraction team arrived.
Defendant grabbed a blanket to absorb the pepper spray he knew the extraction team
would use. Defendant also grabbed the “exacto knife” because he felt his life was in
danger but he did not intend to use it as a weapon. But he decided he needed to use it.
Defendant bound the shank to his right wrist so he could maintain possession of it in the
event of an altercation. Defendant testified the door opened and the deputies shot him
with rubber bullets. Eventually, defendant surrendered to the deputies. Defendant told
the jury he believed the deputies had given him the razor blades and failed to retrieve
them in an attempt to encourage him to commit suicide. The deputies had told him,
“Why don’t you do us a favor and kill yourself.”


                                 d. the deputies’ injuries


       Defendant injured four deputies with the shank during the extraction. Deputy
Orlandos testified, “I received a horizontal laceration to my right forearm approximately
five inches in length.” Deputy Martinez sustained a minor laceration on the inside of his
right middle finger. Deputy Quintana incurred a cut on his little finger. Deputy
Provenzano sustained a laceration to his left inner forearm. Deputy Provenzano also



                                             10
sustained injuries to his left knee. The knee injuries required surgery. Deputy
Provenzano was away from work for more than one year as a result his injuries.


                 e. defendant’s statements in the aftermath of the extraction


         Defendant was taken by ambulance to the hospital. Deputy Gabriel Campos, III,
rode with defendant. During the trip to the hospital, the two spoke. Defendant said he
was tired of “all the mental health bullshit” and he had “no regrets” for what he did.
Defendant said that if a mental health employees tried to “move” him, he would “attack
staff.” Defendant admitted he was, “[R]eady for the deputies when they came and [got
him].” Defendant said: “I went right out of my cell. They shot me with a 40 and that
still didn’t work.” When questioned, defendant also discussed his weapon. The
following transpired during their conversation: “[Deputy] Campos: Did you have a
weapon or anything, or no? [¶] . . . [¶] [Defendant]: . . . What I did is I took two
pencils. [¶] . . . [¶] . . . And I tied them together. And then I . . . took two . . . razors.
[¶] . . . [¶] . . . And then I put them there. You know. That’s basically to defend
myself. [¶] [Deputy] Campos: Like a little slicer or . . . . [¶] [Defendant]: Slicer,
[e]xacto knife, yeah. [¶] . . . [¶] . . . To defend myself. [¶] [Deputy] Campos: Those
things do damage, though, . . . [¶] [Defendant]: Yeah. [¶] Do you know if I got any of
‘em with it? [¶] [Deputy] Campos: I don’t know. Why? What did you try to do, just
slice them up or what? [¶] [Defendant]: Yeah. Yeah. Slice to them. Try to go through
their helmets. . . . [¶] [Deputy] Campos: . . . So by any means necessary you are . . .
[¶] [Defendant]: Any means necessary, and that’s what I did. [¶] [Deputy] Campos:
You were ready to defend yourself, huh? [¶] [Defendant]: Yeah. . . . I stuck to my
word.”
         At the hospital, defendant told Sergeant John Glynn: “[I]f [the mental health] staff
ever issue a move in order without a court order . . . I will attack any [d]eputy that comes
in that cell. . . . And if you issue a move in order when I’m secure in the cell and a use
of force incident occurs I’m gonna go full force at the [d]eputy. . . . I am completely

                                               11
satisfied, even though I got a broken arm attacking the [d]eputies when they came in. I’m
glad I did it. And I will do it again when my arm heals because I have a right to refuse
the [m]ental [h]ealth [s]ystem and I will do it at all costs.”
       On March 31, 2013, Deputy Jorge Meza escorted defendant to a clinic in the Twin
Towers jail. Defendant asked Deputy Meza about the status of the deputies from Men’s
Central Jail. Defendant admitted manufacturing a shank. Defendant said he had aimed
for the deputies’ necks. Deputy Meza testified: “He said he tried to slash a couple of
deputies in the neck . . . .”


   6. July 15, 2013, attempted criminal threats, United States Supreme Court, count 24


       On July 15, 2013, defendant sent a 40-page petition to the attention of Chief
Justice John Roberts of the United States Supreme Court. In it he wrote: “If the United
States Supreme Court does not grant review [of my petition] . . . then whichever one of
the nine justices voted to ‘deny’ the grant for writ of certiorari WILL BE
ASSASSINATED by one or more individuals who are not incarcerated persons with the
means, weapons, and skills to carry out such ASSASSINATIONS, who are gang
affiliated and are ‘beneficially interested’ in the granting of [the writ] . . . .” Defendant
also wrote: “This is an extremely serious issue for gang members and the stated
ASSASSINATIONS will be carried out towards whatever particular federal officials they
become applicable to based upon the particular conditions of the death threat. The
disposition of the petition is actively being monitored and will continue to be monitored
by non-incarcerated gang affiliates . . . .” Defendant testified he thought these words
would convince the justices to hear his petition. Defendant testified he believed his
words would “trigger a threat assessment.” Defendant said his goal was to get his
petition heard. On July 25, 2013, defendant made a telephone call to the United States
Supreme Court. Defendant spoke with a court clerk. He refused to identify himself.




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                         C. Defendant’s Further Uncharged Conduct


                                       1. March 5, 2013


       Defendant was scheduled to appear in court on March 5, 2013. Defendant knew
he would be placed in leg irons. Defendant spoke to Deputy Eric Tunforss. Deputy
Tunforss described what defendant said about a scheduled court appearance: “[H]e knew
that they would be putting him in leg irons for court, and he stated that he would refuse to
go in the leg irons and would kick any deputy that would try to put leg irons on him.”
Defendant also threatened to create a disruption in the courtroom in an attempt to get his
case thrown out of court. Defendant denied making the foregoing statements. Defendant
testified he went to and from court that day without incident.


                                         2. April 2013


       Defendant addressed an April 10, 2013 document to Detective Paul Coblentz.
Defendant wrote: “After I threatened to ASSASSINATE the dishonorable Judge Kevin
John McGee, the state attorney general filed criminal charges . . . .” On April 18, 2013,
Sergeant Carl Lumpkin accompanied a nurse who changed a bandage on defendant’s leg.
In the course of a conversation with Sergeant Lumpkin, defendant said: “. . . I’m gonna
go to trial on [the attempted murder charges] and if I get sentenced to life, once I get off
the chain to prison, I’m killing a cop, bottom line, so, you know, I’m gonna behave
myself through my trial, see that I get my way and get out. If I go to prison for life, as
soon as these chains come off [inaudible], mainline, I’m killing a cop, I’m stabbing him,
that’s my life goal. If I get out, my goal is to go back to school . . . [¶] . . . [¶] . . . I
have a positive goal, and a negative goal. I have [two] goals.”
       On April 21, 2013, defendant wrote to Assistant County Counsel Roger H.
Granbo. The letter stated in part: “If I do not get a response to this letter from you, then
my next letter to you will contain a criminal DEATH THREAT pursuant to Pen. Code

                                                13
422 and 76 subd. (a), threatening to ASSASSINATE a particular public official.” In an
April 22, 2013 document addressed to Captain Stover and others, defendant wrote: “I
know exactly what [Men’s Central Jail] is doing and if it does not stop, I will be forced to
GAS [Los Angeles Department of Mental Health] staff or your staff if they prevent me
from gassing [mental health department] employees. . . . [¶] . . . [¶] Forthright, I am
ENTITLED to refuse any type of medical treatment, including mental health . . . . I have
a right to be free from any compusatory, [sic] (1) diagnosis, (2) evaluations, or (3)
observations by mental health employees. On March 29, 2013 (Good Friday), I sliced
three peace officers at [Men’s Central Jail] over [a mental health] movement order.
Regardless of the fact that my arm was broken by deputies, at the end of the day, I GOT
three cops. [¶] I want to make it extrem[e]ly clear to YOU, and all the individuals I
have copied this memorandum to, that I have absolutely EVERY INTENTION to utilize
violence to enforce my right to refuse affiliations or STIGMA to the mental health
system. I am committed to doing anything that I deem necessary to be removed,
disassociated, and unaffiliated with the mental health system, AT ALL COSTS, literally,
whether that means I never see the outside world again because I receive life in prison or
I end up becoming a quadra-peliegic [sic]. It is absolutely and unequivocally worth it to
me. I have absolutely no regret or remorse for my actions in slicing those three peace
officers. As a matter of fact, I am just a little disappointed and acceptant about the fact
that I did not ASSASSINATE at least one of them.” (Italics added.)


                                      3. May 3, 2013


       On May 3, 2013, in the county jail, defendant gave a nurse, Karina Quitiquit, a
document. The document read in part: “My goal is to get my arm as strong as possible
so when I get up to state prison, I will be strong enough to murder some random state
peace officer within the prison.” (Italics added.) Defendant also said he was proud of
slicing the three deputies. At trial, defendant admitted writing this document. He



                                             14
understood that it might get someone’s attention. He understood its connection with the
March 29, 2013 events.


                                       4. June 16, 2013


          On June 16, 2013, Deputy Albert Macias heard defendant threaten to kill a cop.
Deputy Macias described defendant’s threat, “I heard him say that his goal was to kill a
cop when he catches the chain.” The phrase “catching the chain” refers to going to
prison.


                                     5. August 18, 2013


          On August 18, 2013, defendant told Deputy Maurice Jolliff: “Deputy Jolliff, I’m
not going to go to court on the 10th, and that even with my broken arm, if you come and
deputies come try to take me, I’m not going to go. Fight them. . . . Deputy Jolliff, if I
see you, even though I have a broken arm, I’m going to fight you as well.”
Approximately 25 minutes later, defendant told Deputy Jolliff: “You remember what
happened to the deputies over at [the Men’s Central Jail] that I sliced up? . . . I’m going
to slice you up as well in that fashion. . . . Remember the one deputy that I sliced his
arm up? I know that when he wakes up in the morning now, he can’t move his arm
anymore.” Then defendant starting laughing.


                     D. Pretrial and Trial Proceedings in the Present Case


                       1. The September 10, 2013 preliminary hearing


          Defendant’s preliminary hearing in the present case commenced on September 10,
2013. The matter was heard before Judge Dennis J. Landin. Judge Landin was also the
trial judge in the present case. For clarity’s purposes, we refer to Judge Landin as the

                                              15
trial court. Later during the trial proceedings, issues arose concerning restraining
defendant. In ruling on those issues, the trial court had heard all of the evidence
presented and observed all of defendant’s conduct at the preliminary hearing.
       The following individuals testified at the preliminary hearing: Mr. Hinton, the
gassing victim in count 16; Deputy Felix, the gassing victim in count 14; Deputy Michael
Scott Culver, who described the incident involving Deputy Smoldt as charged in count
17; Sergeant John McClure, who testified to threats defendant made in August 2013;
Deputy Meza, who repeated defendant’s March 31, 2013 statement; in that statement,
defendant admitted he had tried to slash the deputies in their necks; Sergeant Glynn, who
had spoken with defendant at the hospital on March 29, 2013; Sergeant Rojas, the
supervisor of the extraction team; Deputy Orlandos, who participated in the March 29,
2013 extraction; and Deputy Paul Coblentz, who testified to several written threats by
defendant. Also, Deputy James Sexton, testified as to a statement made by defendant on
the first day of the preliminary hearing. According to Deputy Sexton, “He said that the
second goal in his life was to kill a cop.” And, Deputy India Inez testified about several
written threats issued by defendant.
       Defendant was removed from the courtroom at the outset of the preliminary
hearing after making loud noises designed to disrupt the proceedings. Defendant later
reentered the courtroom to make a substitution of counsel motion. Defendant said he
would physically resist any efforts to bring him to court. Defendant also stated: “I know
this is on the record, and I know it’s admissible. I have two goals in my life. One of my
goals is to go back to school. . . . My other goal is to kill a cop when I get to prison.”
Later that day, the trial court inquired whether defendant wanted to remain in the
courtroom. The following transpired: “. . . I will not come back at all. I don’t care if I’m
extracted. I’m prepared to extract from here on out. I will attack any deputies, even at
CTC, in a hospital environment if any extraction orders are issued from this point
forward. “Defendant then addressed the court clerk: “I’ll be sending you a letter. When
you get my letter, don’t you put it as inoperative. Don’t play that bitch game, or I’ll send



                                             16
you a death threat . . . .” Defendant also remarked in open court, “When the trial starts,
I’ll be ready to attack the cops.”


                        2. The October 15, 2013 pretrial conference


        In Superior Court case No. BA366400, tried before Superior Court Judge Craig J.
Mitchell, defendant was convicted of eight counts of making criminal threats. The jury
also found hate crime allegations to be true as to two counts. The evidence in that case
established that: in July 2008, August 2009 and September 2009, defendant repeatedly
threatened to kill Ventura County Deputy District Attorney, Marc Leventhal; in July
2009, defendant repeatedly threatened to kill Deputy Attorney General Rama Maline;
defendant also threatened to kill Deputy Attorney General Jonathan Kline; and defendant
threatened to rape and murder Deputy District Attorneys Kasey Sirody, Rachelle Dean,
Melissa Suttner and Joann Roth. (People v. Avila (June 10, 2014, B247954) nonpub.
opn.)
        The trial court reviewed the entire file in case No. BA366400. During an October
15, 2013 pretrial conference, the trial court referenced the prior case in connection with
defendant’s self-representation request, which was denied: “[Y]ou, among other things,
have disobeyed this court’s order restricting your use of the phone, threatened to disrupt
the proceedings and have disrupted the proceedings. [¶] You have made threats against
the prosecutor and the courtroom clerk; you have refused to come to court; and you have
interrupted the court, the district attorney, and your own attorney whenever you wanted
to be heard. [¶] These actions are similar to and consistent with your behavior in case
[No.] BA366400, where you were charged and later convicted of criminal threats. And
in that case you refused to cooperate during the psychological evaluation, you threatened
to gas any deputy who tried to move you against your will, you threatened to assault your
own attorney, you threatened to assassinate the district attorney and judicial officers, and
you used profanity toward at least one or more judges. [¶] Moreover, you have made
statements in . . . a Marsden hearing . . . that have convinced this court that you fully

                                             17
intend to manipulate the criminal justice system and lie to the court as part of a strategy
to avoid a final conviction.”


                                      3. January 15, 2014


       On January 15, 2014, defendant was due in court but refused to leave his cell. His
actions were videotaped. Defendant had placed a sign in his cell door window which
read: “NOTICE: Other than to feed me lunch and dinner DO NOT open any part of this
door until 17:00 [hours]. I WILL ATTACK. Any DIRECTED use of force, period,
lawful and unlawful. Pen. Code 69, w/a smile.” Defendant spoke through the glass
window in his cell door. Defendant said: “[T]his message is for the judge, it’s for
everyone in the courtroom here. It’s intended to be played on the big screen. . . . So,
Your Honor, you are now in excess of jurisdiction. I am warning you that I am prepared
to attack; not passively resist, but actively attack at full physical will, any [p]eace
[o]fficer that tries to remove me from this cell . . . . If any commitment [to a state
hospital] is made, I will attack any peace officer who tries to execute your order to
transfer me to any [state hospital]. I will attack any [p]eace [o]fficer that tries to move
me to any Department of Corrections facility. . . . So, you’re aware that [you’re] in
excess of jurisdiction, you’re running amok. I am prepared to get hurt on any type of
transfer outside of this facility. I am also pro-per in a civil federal case . . . . If this cell is
searched outside of my presence . . . I will attack any of these deputies on the way back.
I have a doctor’s order for no leg chains . . . . That doctor[‘s] order overrides. That
comes first, your safety second. My pride first, everyone’s safety second. I am prepared
to attack anyone . . . . So, if you proceed without me, realize that I am waiting day by
day to attack any [p]eace [o]fficer. . . . .”




                                                18
                                       4. March 12, 2014


       Defendant was scheduled for x-rays on March 12, 2014. However, defendant
again refused to leave his cell. Defendant’s refusal was videotaped. Defendant said:
“. . . I will attack your staff [¶] . . . I’m gonna frick’in kick anyone. If I see that
[unintelligible] I’ll kick your staff. [¶] . . . [¶] . . . Come on this tier again and I’ll gas
you . . . . That’s why I got this thing right here . . . .”


                                    5. April 11 and 12, 2014


       On April 11 and 12, 2014, defendant spoke with Sergeant Robert Gillis. The
conversation was video-recorded. Defendant said he would “gas” certain classes of
individuals—jail investigation unit deputies, jail mental evaluation team members,
lieutenants and higher ranked deputies—if they approached his cell. Defendant also
spoke to Sergeant Gillis about what would happen if there was a cell extraction. The
following occurred during direct examination of Sergeant Gillis: “Q. [D]id he say that
he could withstand a half hour of [gas] and he was going to kill someone when he came
out. [¶] A. Yes.” Defendant testified certain portions of the video recording of the
conversation with Sergeant Gillis had been erased. During the unrecorded portion of
their conversation, defendant testified he was threatened he would be shot in the head
with rubber bullets.


                             6. May 6, 2014: the trial commences


       Defendant’s jury trial commenced on May 6, 2014. Early that morning, defendant
refused to voluntarily exit his cell. He threw what he described as “water” on the
deputies saying, “That’s my answer.” He also threatened, “If you come in here I’m
gonna try and kill you guys.” Defendant resisted the subsequent extraction. Defendant
was armed with a shank, which he bound to his wrist. Defendant complied only after the

                                                19
deputies pumped gas into his cell. At trial, defendant admitted had armed himself with a
shank. He told the jury, “I’m proud I stood my ground . . . .”
        Defendant subsequently appeared in the courtroom strapped to a gurney.
Detective Inez described to the trial court the efforts required to secure defendant’s
presence in the courtroom stating, “The entire process . . . took about [an] hour, hour and
a half” and required a team of six deputies. Detective Inez said the extraction required
“extraordinary measures” and was “extremely taxing” for the sheriff’s deputies.
        Defense counsel, Jimmie Johnson, asked that defendant be allowed to sit in a
chair. A sheriff’s lieutenant identified only as Lieutenant Thrall was present in the
courtroom. Lieutenant Thrall oversaw custody investigative services in the jail system.
The trial court inquired of Lieutenant Thrall what restraints would be appropriate if
defendant chose to attend the trial. The lieutenant explained: “If this individual, in any
way, becomes a problem for us, we would most likely restrain him in the same way and
keep him that way the entire time. . . . [T]he reason being that every time we have to
take him out of this device, chair or gurney, . . . we have a potential assaultive issue we
have to tactically deal with. So whatever we do, we need to keep him in that same
position the entire time if that’s okay with the court.” The trial court then inquired
whether there was a chair that could be used rather than the gurney. Lieutenant Thrall
responded: “There is a chair, but it would be less comfortable than that gurney over long
periods of time.” The trial court then suggested that sheriff’s department representatives
meet with defendant and “talk that through.” The trial court also commented: “. . . I’ll
ask the sheriffs to have only enough deputies that you think are necessary to ensure the
safety of court personnel and the public in the courtroom when the jurors are
present . . . .”
        The trial court revisited the restraint issue later that same day: “The Court: . . .
[¶] . . . [¶] . . . [I]f [defendant] chooses to come voluntarily [to court], you don’t have to
put hands on him, he’s cuffed, is there any reason for the gurney? [¶] [Lieutenant]
Thrall: His past actions really show that he needs to be in this gurney. The chair that we
speak about, he can only be in that chair for a certain amount of time. If it causes us

                                              20
tactical problems, if we have to get him in and out of the chair constantly – [the gurney
is] pretty safe. It’s pretty comfortable. I don’t think that it would be any different if he
was strapped up to a chair than this. [¶] The Court: Are you telling me that you believe
those are the only two options in light of his behavior, the chair or gurney versus having
him shackled? [¶] [Lieutenant] Thrall: His behavior in the past of stabbing deputies,
slashing them, hurting them, this all could be done quickly and to any of your staff, any
of my staff. I think it would be in our best interest to keep him [on] the gurney. . . . [¶]
 . . . [¶] The Court: . . . Tomorrow why don’t you try the safety chair, and if it is less
comfortable, maybe [defendant] will want to go back to the gurney quietly.” The
courtroom bailiff interjected: “The policy is that they are only allowed to be in the safety
chair for two hours, and then we have to obviously move them and then put them back.
That creates another issue.”
       Sergeant Larry Meade advised the court: “The issue here is a matter of safety of
[defendant], my staff and court and everyone in the courtroom. The history [defendant]
has shown can be very violent and can be very benign. Now, the safety chair has
limitations, as the deputy explained here. The gurney is very comfortable. . . . [A]nd the
reason why Lieutenant Thrall and I and most people agree on our side regarding
[defendant] is we don’t know when he will decide that he doesn’t like something and get
violent. . . . I am trying to avoid a situation where we have to use force on him because
he’s free rather than having him in the gurney . . . . [We don’t want to have] an issue
while in transport. That’s the biggest concern. [¶] . . . [¶] . . . I will say that safety is
the issue. The safety chair requires rotation. Anything short of the gurney where he’s
restrained and any given time that propensity is there – and I really don’t want to take
those chances with him and with my staff.” The trial court ruled it was appropriate to use
the gurney for the next trial date and then, “[We will] see how it plays out and think
about other options.”




                                              21
                                       7. May 7, 2014


       The following day, May 7, 2014, defense counsel inquired: “Will [defendant] be
in a chair tomorrow?” The trial court responded: “We need to talk about that. Here’s
the problem I see. In light of what I heard, if [defendant], in fact, has to be taken out
every two hours, that’s going to put people at risk. It’s easy for me to say to do it
anyway, but I’m not the one put in harm[‘]s way. Given the struggle it took to get him
here and how he was able to produce a shank, I’m still concerned about whether or not
it’s appropriate to have him in a chair that requires him to be released. [¶] . . . [¶] . . .
[I]f it[‘]s not appropriate to keep him in a chair for beyond two hours, that might cause
other problems. Then we shouldn’t go down that road. [¶] . . . [¶] . . . I could meet
with the deputies . . . and have a discussion off the record and then put it on the record
about an alternative. . . . At this point I’m not going to require the sheriffs to bring him
in a chair tomorrow. . . . [¶] Mr. Johnson: Can you require the chair be available
tomorrow? [¶] The Court: Well, I’ll talk to the sheriffs about that off the record before
the end of the day. They can give me some information about that. Right now there’s no
reasonable alternative.”


                       8. Defendant’s May 15, 2014 mistrial motion


       On May 15, 2014, defense counsel made the following statement at sidebar: “I
want to make a record. [Defendant] is still on this gurney in court lying next to counsel
table. He has a white sheet over him. There are three black straps that are securing him
to the gurney and generally three to five deputies sitting here by - - now there’s two.
They have these thick vests. They appear to be bullet-proof vests. I think this sheriff is
communicating to the jury that [defendant] is a very dangerous person. I don’t think he
can get a fair trial. I’m going to move for a mistrial. I asked several times that
[defendant] be allowed to sit in this chair. The chair they usually use for inmates who are
considered to be unruly is called a stealth chair. That’s what it’s referred to in that

                                              22
manner because the inmate is strapped to the chair, but it’s done in a way that’s not
visible to the jury. [¶] [Defendant] is also handcuffed to the gurney. At times the sheet
over his body moves, and you can see that his hands are handcuffed. So he’s in effect,
being shackled, strapped to this gurney, handcuffed to the gurney, and I think it’s going
to make it very difficult, if not impossible, for him to get a fair trial from this jury. This
has gone on every day for the trial.” The trial court deferred its ruling on the matter to a
later point in the day.
       The trial court subsequently viewed, outside the jury’s presence, a videotape of the
May 6, 2014 extraction. The trial court observed: “[W]hat I see here confirms my belief
that there has been and still continues to be an amount of necessity to restrain [defendant]
on the gurney. [¶] . . . [¶] . . . That it took the gassing of [defendant] to gain
compliance. And it’s my belief that if he was in any other restraints, he would pose a risk
to everyone in this courtroom.” The trial court then discussed the scene in the courtroom
and whether or not the jury might have observed that defendant was handcuffed to the
gurney: “First of all, . . . [defendant’s] feet are about ten feet from where I sit. And I
have a clear view of his feet and . . . and right side of the gurney. I did not see earlier
today his hand cuffed to that gurney. Maybe you saw it, Mr. Johnson, but - - [¶] Mr.
Johnson: At one point, the sheet moved and I . . . could see it. [¶] The Court: And
that’s why I think I have to lay some further information out for the record. [¶] [Mr.
Johnson, who is at counsel’s table, is to defendant’s left.] [¶] . . . [And Mr. Johnson is]
just about two and a half to three feet from [defendant’s] left torso. . . . And at the next
table is the investigating officer Inez; and in front of her is the overhead projector . . . ;
and in front of it and to the left of that in front of both Inez and [Deputy District Attorney
Phillip] Stirling is a laptop computer which has been there most of the trial; [¶] and then,
of course, there’s Mr. Stirling and then a few feet to Mr. Stirling’s left is the jury box. [¶]
So even if you could see [defendant’s] hand handcuffed, Mr. Johnson, I seriously doubt
whether any of the jurors could have seen that. I certainly didn’t see it, and I’ve been
looking at [defendant] throughout the trial to determine if any restraints were visible
other than the ones over his body. . . . [¶] And also yesterday . . . there was an outburst

                                               23
on [defendant’s part]. He became loud and disruptive, and I thought at that point he
might try to move from his current location; but because he’s secured, I don’t think that’s
a possibility.” The trial court then denied the defense mistrial motion.


                 9. The May 16, 2014 Evidence Code section 402 hearing


       On May 16, 2014, Mr. Johnson asked the trial court to modify its order regarding
defendant’s restraints. The trial court held a hearing outside the jury’s presence as to the
place in the courtroom from which defendant would testify. The trial court described
defendant’s restraints, “For the record, he is still in the gurney and has three straps
covering a sheet that is covering him.” The trial court called Sergeant Theresa Culberson
to testify and inquired, “Can you comment on whether or not placing [defendant] in the
witness chair and securing him to [it] is a workable solution?” Sergeant Culberson
testified, “If [defendant] came up and was cooperative in sitting in the chair and then
became uncooperative trying to place him back on a gurney, it would pose a danger to the
courtroom and staff who would have to restrain him back into the gurney.” Sergeant
Culberson further testified that given defendant’s exhibited strength, he could not be
safely restrained in the witness chair. On cross-examination, Mr. Stirling asked Sergeant
Culberson, hypothetically, whether defendant could be safely handcuffed in the chair
which was bolted to the floor with waist-chains and leg shackles. Sergeant Culberson
responded: “There’s been special teams that have accompanied [defendant] here to court,
and they have had difficulty extracting him from the cell and placing him into the gurney.
It would be an added risk to ask them . . . to unstrap him from the gurney and then re-
restrain him to bring him up here.” [Sic.] When defendant’s lawyer, Mr. Johnson,
questioned Sergeant Culberson, the following testimony was presented: “Q. So what
you’re saying is that you believe that if he were to become unruly, he’d be difficult
restrain on the witness stand; correct? [¶] A. Yes.” Sergeant Culberson’s concern arose
from defendant’s numerous outbursts in courtrooms and the verbal threats made against
Mr. Johnson and sheriffs deputies. The trial court ruled: “. . . I’m not going to change

                                              24
my ruling. Placing [defendant] in the safety chair or on the witness stand, it’s just not a
real alternative given what I know about [defendant’s] behavior. If he’s removed from
the gurney while in the courtroom or even in the courthouse and then later refuses to get
back onto that gurney, it would require the sheriffs to use substantial force and put people
at risk, including [defendant]. As I’ve seen from the videos that have been presented in
this case, someone could get seriously hurt, including [defendant]. So I’m not going to
take the risk. And, of course, it would certainly delay the proceedings in ways I can’t
even anticipate.”
       On behalf of defendant, Mr. Johnson, objected. Mr. Johnson argued defendant
had never become unruly or attacked anyone in court. The trial court noted that although
the jury could see defendant was strapped to the gurney, there were no visible chains,
handcuffs or leg irons. Further, the trial court stated: “I don’t know how he’s secured to
the gurney under the sheet. I haven’t seen that.”
       The prosecutor, Mr. Stirling, countered that defendant had been violent in the
courthouse as well as in the jail. Mr. Stirling explained that defendant had kicked a
deputy and had threatened to murder judges or their families. Also, defendant had had
threatened to murder Mr. Stirling. In reference to Mr. Stirling, defendant had stated, “If it
was legal, I’d shoot your ass,” or “kill your ass.” Mr. Stirling argued: defendant had
threatened Sergeant Culberson; in a recorded statement, defendant had expressed an
intent to kill to kill deputies; and defendant had been found with a second shank 9 or 10
days earlier. Mr. Stirling argued: “All of this behavior is his choice. He doesn’t like the
situation where he’s being defined as a different type of witness than the other witnesses
because of something that Your Honor whimsically thought about, that he’s charged with
these crimes for example. He is voluntarily, knowingly and willfully engaging in
behavior, which he has been warned about over and over and over, and he continues to do
it. Therefore, it changes the equation.” In addition, Mr. Stirling explained that the jurors
had been questioned during the jury selection process about the security precautions in
the courtroom. And they were instructed they were not to use the security precautions as
evidence of guilt. Mr. Stirling concluded, “They all promised they could do that.”

                                             25
         The trial court declined to change its ruling. The trial court emphasized that its
decision was based on defendant’s size and strength, and the extreme measures that had
to be taken to get him to comply with deputies. The trial court reasoned that if a need
arose to subdue defendant in the courtroom, everyone present would be at substantial risk
of harm. The trial court subsequently described defendant’s restraints: “[T]he record
should be clear that [defendant] . . . is not laying flat on a gurney. He’s propped up, and
his head is almost as high as yours when you’re standing, [Mr. Johnson].”
         The sheriff’s department later presented an alternative plan for securing defendant
during his testimony. The trial court described the plan: “If [defendant] testifies, he’d
have to be secured to the chair. On both sides of him would be two deputies, one armed
with a taser, and a third deputy probably seated by my court reporter. So he’d be
basically surrounded by the personnel who are clothed in [protective vests].” The trial
court commented, “[I]n my view, [this plan] may be even more prejudicial, counsel.”
The trial court then asked the deputies to take their intended positions and described the
scene for the record: “One deputy is seated to the right of the witness stand. Another
deputy is about seven to eight feet against the wall by the entrance to the jury deliberation
room and between the jury box. A third deputy is seated in front of what would be juror
number 9.”
         Defendant testified before the jury from the witness stand. He was secured to the
chair. A deputy sat to the right of the witness stand. Another deputy stood between the
jury box and the entrance to the jury deliberation room. A third deputy was seated in
front of the jury box. One deputy was armed with a taser. The deputies wore protective
vests.


                      10. Defendant’s repeated interruptions during trial


         Defendant repeatedly interrupted the trial proceedings. He engaged in a number
of outbursts during the trial. While Sergeant Rojas was on the stand, defendant blurted
out: “Punk ass bitch motherfucker. [¶] . . . [¶] . . . How would you like it if I shot you

                                               26
two times, man?” The trial court instructed the jury to leave the courtroom. As the jurors
were exiting, defendant stated: “Medically clear me? Punk ass bitch. Nobody told you I
was psycho, huh? Punk ass bitch. I want to see the psyche doctor, mother fucker.” The
trial court observed, “[Defendant] is now raising his voice . . . .”
         Defendant interrupted the proceedings again while Deputy Quintana was on the
stand: “The Defendant: Charlie horse, man. Bullshit. Fuck. Ridiculous, man. [¶] . . .
[¶] . . . I got Charlie horse, Your Honor, and it hurts. [¶] . . . [¶] . . . Can’t sit in a chair
like a normal person? [¶] . . . [¶] . . . Hurts, dude. Fuck, man. [¶] . . . [¶] . . . They
are just hiding all the bullshit. I’m in orange. [¶] The Court: Folks, go into the jury
room for just a moment. [¶] The Defendant: Take an idiot for one person to find not
guilty and hang the jury. Bullshit, man. Fucking hurts, man. I want to sit like a normal
fucking person. It’s going to hurt. I need to stretch my fucking legs. [¶] The Court:
The record should reflect we’re outside the presence of the jurors. [¶] The Defendant: I
could have sat like a normal fucking person.” The trial court noted defendant’s voice was
“very loud.”


                                       III. DISCUSSION


                                          A. Restraints


         As described above, defendant was restrained throughout the trial. Except while
testifying, defendant was on a hospital gurney. He was handcuffed to the gurney. He
was covered with a sheet over which three straps were visible. Several sheriff’s deputies
wearing protective vests guarded defendant. We previously set forth the trial court’s
description of the security measures in place when defendant testified. During his
testimony, defendant was secured to the witness chair. A deputy sat to defendant’s right.
Another deputy stood between the jury box and the entrance to the jury deliberation
room. A third deputy was seated in front of the jury box. One deputy was armed with a
taser.

                                                27
       Defendant argues his constitutional and due process rights were violated when he
was required to appear at trial under restraint visible to the jury and guarded by deputies.
In addition, defendant argues the foregoing constituted an abuse of judicial discretion.
As our Supreme Court has explained: “The ‘court has broad power to maintain
courtroom security and orderly proceedings.’ (People v. Hayes (1999) 21 Cal.4th 1211,
1269.) On appeal, its decisions on these matters are reviewed for abuse of discretion.
(People v. Stevens (2009) 47 Cal.4th 625, 633.) Under California law, ‘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.) Similarly, the federal ‘Constitution forbids the
use of visible shackles . . . unless that use is “justified by an essential state interest”—
such as the interest in courtroom security—specific to the defendant on trial.’ (Deck v.
Missouri (2005) 544 U.S. 622, 624, italics omitted.) . . . ‘In deciding whether restraints
are justified, the trial court may “take into account the factors that courts have
traditionally relied on in gauging potential security problems and the risk of escape at
trial.” (Deck v. Missouri[, supra, 544 U.S.] at p. 629.) These factors include evidence
establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the
proceedings or otherwise engage in nonconforming behavior.’ (People v. Gamache
(2010) 48 Cal.4th 347, 367.) Although the court need not hold a formal hearing before
imposing restraints, ‘the record must show the court based its determination on facts, not
rumor and innuendo.’ (People v. Stevens, [supra,] at p. 633.)” (People v. Virgil (2011)
51 Cal.4th 1210, 1270-1271; accord, People v. Jackson (2014) 58 Cal.4th 724, 738.)
       There are different standards applied to the presence of deputies in proximity to an
accused and the presence of visible physical restraints. The presence of deputies in the
courtroom, including in close proximity to the defendant, need not be justified by a
showing of manifest need or an essential state interest. (Holbrook v. Flynn (1986) 475
U.S. 560, 569 (Holbrook); People v. Stevens, supra, 47 Cal.4th at pp. 633-635, 638.) In
Stevens, our Supreme Court explained at length that stationing additional security guards
or law enforcement officers in a criminal courtroom is not inherently prejudicial. (People

                                               28
v. Stevens, supra, 47 Cal.4th at pp. 633-641; see People v. Bryant (2014) 60 Cal.4th 335,
390.) Unless law enforcement officers are present in unreasonable numbers, the trial
court need not justify their presence. (People v. Stevens, supra, 47 Cal.4th at p. 634;
People v. Duran, supra, 16 Cal.3d at p. 291.) There is a wide range of inferences a jury
could reasonably draw from the presence of law enforcement officers in a criminal
courtroom. The United States and California Supreme Courts have explained their
presence need not be interpreted as a sign the defendant is unusually dangerous or
culpable. And even when the sight of additional deputies in a courtroom may create an
impression of dangerousness, it does not give rise to a presumption of inherent prejudice.
(Holbrook, supra, 475 U.S. at p. 569; People v. Stevens, supra, 47 Cal.4th at p. 635.)
       In Stevens, for example, a deputy sat or stood next to the defendant while the
accused testified. Our Supreme Court held no showing of manifest need was required to
justify the deputy’s presence while the defendant testified: “We conclude a deputy’s
presence at the witness stand during a defendant’s testimony is not inherently prejudicial.
As the United States Supreme Court observed over 20 years ago, jurors have become
accustomed to seeing security officers in public places such as the courtroom (Holbrook,
supra, 475 U.S. at p. 569), and there is a wide range of inferences they may draw from an
officer’s presence near a testifying defendant. Because security officers are now
‘ordinary and expected’ in the courtroom (People v. Jenkins [(2000)] 22 Cal.4th [900,]
998), jurors may view the sight of an officer accompanying the defendant to the witness
stand as nothing more than a routine measure. (Holbrook, [457 U.S.] at p. 569; see
People v. Miranda [(1987)] 44 Cal.3d [57,] 115[, limited on another point in People v.
Marshall (1990) 50 Cal.3d 907, 933, fn. 4].) Although a deputy’s presence next to a
testifying defendant may be viewed as a defendant-focused practice when officers do not
accompany other witnesses to the stand, the Supreme Court has made it clear that not
‘every practice tending to single out the accused from everyone else in the courtroom
must be struck down.’ (Holbrook, supra, 475 U.S. at p. 567.) ‘Recognizing that jurors
are quite aware that the defendant appearing before them did not arrive there by choice or
happenstance,’ the high court stressed that it has ‘never tried, and could never hope, to

                                             29
eliminate from trial procedures every reminder that the State has chosen to marshal its
resources against a defendant to punish him for allegedly criminal conduct.’ (Ibid.) That
a security practice seems to focus attention on the defendant is not enough, without more,
to render the practice inherently prejudicial.” (People v. Stevens, supra, 47 Cal.4th at p.
638; see Hill v. Ozmint (4th Cir. 2003) 339 F.3d 187, 189.) Here, the trial court directed
that, “[T]he sheriffs . . . have only enough deputies that you think are necessary to ensure
the safety of court personnel and the public in the courtroom when the jurors are present .
. . .”
         No abuse of discretion or violation of any constitutional rights occurred. No
doubt, the use of visible restraints tends to: undermine the presumption of innocence and
the related fairness of the fact-finding process; diminish a defendant’s right to counsel;
prejudice a defendant’s ability to communicate and to participate in his or her own
defense; and undermine the objective of maintaining a dignified judicial process. (Deck
v. Missouri, supra, 544 U.S. at pp. 624, 629-631; People v. Jackson, supra, 58 Cal.4th at
p. 739.) But, as the United States Supreme Court has articulated, “There will be cases, of
course, where these perils of [restraint] are unavoidable.” (Deck v. Missouri, supra, 544
U.S. at p. 632; accord Lakin v. Stine (6th Cir. 2005) 431 F.3d 959, 962.) The evidence
unequivocally demonstrated defendant posed an extreme safety risk based on: his size
and exhibited strength; his extensive history of threatening and assaultive conduct; his
repeated use of a shank; his complete lack of remorse; his stated goal to kill a law
enforcement officer; his disruptive behavior; and the repeated incidents during which he
put himself and others at risk of serious injury or death. Moreover, during the
preliminary hearing, defendant remarked in open court, “When the trial starts, I’ll be
ready to attack the cops.” Given defendant’s history, the trial court could reasonably
conclude this was not an idle threat. There was a manifest need for the restraint and an
essential state interest in protecting: jurors; witnesses; attorneys; deputies; judges; court
staff; spectators; and all others present in the courthouse, including defendant himself.
         Defendant argues the trial court abdicated its decision-making power and allowed
the sheriff’s deputies to determine how defendant was to be restrained. Defendant

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correctly notes it was the trial court’s duty to decide what restraints were justified based
on the facts. (People v. Montes (2014) 58 Cal.4th 809, 841; People v. Lomax (2010) 49
Cal.4th 530, 559.) The trial court was required to make its own decision based on the
facts in this case; it would be error to rely solely on the deputies’ judgment. (People v.
Lomax, supra, 49 Cal.4th at p. 561; People v. Mar (2002) 28 Cal.4th 1201, 1218.) A trial
court abuses its discretion if it abdicates its decision-making authority to court security
personnel. (People v. Mar, supra, 28 Cal.4th at p. 1218; People v. Hill (1998) 17 Cal.4th
800, 841.) The record must demonstrate the trial court made the determination
independently. (People v. Lomax, supra, 49 Cal.4th at p. 561; People v. Mar, supra, 28
Cal.4th at p. 1218.) We disagree with defendant’s characterization of the trial court’s
decision-making. While the trial court properly consulted with the deputies and other
sheriff’s personnel in considering the issue, it did not simply rely on their judgment. The
trial court heard the attorneys’ arguments, considered the evidence, listened to the
deputies’ opinions and concerns and then made its own carefully considered, independent
determination.
       Our Supreme Court has further held, “‘[A] trial court should select the least
obtrusive [restraint] method that will be effective under the circumstances. [Citation.]’
(People v. Gamache [supra,] 48 Cal.4th [at p.] 367.)” (People v. Montes, supra, 58
Cal.4th at p. 841; accord, People v. Lomax, supra, 49 Cal.4th at p. 562.) Here, the trial
court was faced with the need to handle an extremely dangerous and particularly
disruptive defendant. Use of restraints was unavoidable in the face of the dire risk of
injury to defendant and others. The trial court considered the lesser alternative of a safety
chair. The court was advised, however, that defendant would have to be released from
the chair at regular intervals. The trial court reasonably concluded repeatedly releasing
defendant from his restraints would pose an unreasonable risk of danger. After
considering all the circumstances, including available alternatives, the trial court
employed the fairest, most reasonable restraint available.
       The jury did see defendant strapped to the gurney, secured to the witness chair and
closely guarded. The jury may have realized the gurney itself was in fact a restraint. But,

                                             31
even if the jurors viewed the gurney as a restraint, what they saw was not so inherently
prejudicial as to pose an unacceptable threat to defendant’s fair trial right. (See
Holbrook, supra, 475 U.S. at pp. 570-572; People v. Ayala (2000) 23 Cal.4th 225, 252-
253.) The evidence at trial overwhelmingly depicted defendant as a very violent,
unremorseful, menacing individual who threatened to kill jurists, lawyers and peace
officers. Defendant’s interruptions and outbursts at trial reinforced that image. In light
of those facts, the precautions taken would not have unfairly suggested to the jury that
defendant was any more violent than they already knew him to be.


           B. Sufficiency of the Evidence of Attempted Premeditated Murder


       Defendant asserts there was insufficient evidence of a specific intent to kill each of
the three victims—Deputies Orlandos, Provenzano and Rojas. In addition, defendant
argues there is insufficient evidence he committed a direct but ineffectual act toward
killing any of them. Defendant argues in part: “The facts reveal [defendant] was
swinging the shank indiscriminately, trying to strike and fend the deputies off . . . . There
was no testimony [defendant] yelled out or said anything during the entire incident that
indicated he was intent on killing anyone.” This contention is meritless.
       We apply the substantial evidence standard of review: “‘The proper test for
determining a claim of insufficiency of evidence in a criminal case is whether, on the
entire record, a rational trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to
the People and must presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]’ (People v. Jones (1990) 51
Cal.3d 294, 314.)” (People v. Perez (2010) 50 Cal.4th 222, 229; accord, People v. Smith
(2005) 37 Cal.4th 733, 738-739.)
       Attempted murder requires a specific intent to kill and the commission of a direct
but ineffectual act toward accomplishing that goal. (People v. Perez, supra, 50 Cal.4th at
p. 229; People v. Smith, supra, 37 Cal.4th at p. 739.) Our Supreme Court has held, “‘The

                                             32
mental state required for attempted murder is the intent to kill a human being . . . .’
(People v. Stone (2009) 46 Cal.4th 131, 140.)” (People v. Perez, supra, 50 Cal.4th at p.
225; id. at p. 229; accord, People v. Bland (2002) 28 Cal.4th 313, 328 [to constitute an
attempted murder, the guilty person must intend to take life].) As to each of the
attempted murder counts, the prosecution had to prove defendant acted with specific
intent to kill each victim. (People v. Perez, supra, 50 Cal.4th at p. 230; People v. Smith,
supra, 37 Cal.4th at p. 739.) As our Supreme Court explained in Stone, “‘[G]uilt of
attempted murder must be judged separately as to each alleged victim.’” (People v.
Stone, supra, 46 Cal.4th at p. 141; accord People v. Perez (2010) 50 Cal.4th 222, 230.)
The requisite mental state is rarely susceptible of direct proof; it may be inferred from the
defendant’s acts, including conduct leading up and the circumstances surrounding the act.
(People v. Thomas (2011) 52 Cal.4th 336, 355; People v. Avila (2009) 46 Cal.4th 680,
701; People v. Smith, supra, 37 Cal.4th at p. 741.)
       As set forth above, defendant had an extensive prior history of threatening and
assaultive conduct. In advance of the extraction that led to the attempted murder charges,
defendant talked to Lieutenant Alvarez. Defendant said he would not leave his cell, had a
shank and would use it. Defendant armed himself with the shank. It consisted of several
razor blades hardened together. Defendant attached the shank to his wrist so that he
would not lose it when he assaulted the deputies. He covered his face with a cloth to
protect himself from pepper spray. Sergeant Rojas and Deputies Orlandos and
Provenzano, the attempted murder victims, stood directly in front of defendant’s cell
door. Other deputies fanned out behind them. The deputies filled a space approximately
four feet deep from defendant’s cell door to the hallway wall behind them. Deputies
Orlandos and Provenzano were tasked with forcing defendant back into the cell. They
were to pin him against the wall using their bodies and their shields.
       The moment the door slid open a few inches, defendant burst from his cell, forcing
the gate open further. Defendant overpowered Sergeant Rojas and Deputies Orlandos
and Provenzano. Defendant repeatedly hacked and sliced at them with the shank.
Defendant raised his hand above his head and thrust it down in a slashing motion. He

                                             33
swung the shank like a tomahawk in a hacking motion. Deputy Orlandos sustained a
horizontal laceration to his right forearm which measured approximately five inches in
length. Deputy Provenzano sustained a laceration to his left inner forearm. During the
ambulance ride to the hospital, defendant bragged he was ready for the deputies when
they came to get him. Defendant admitted trying to slice Sergeant Rojas and Deputies
Orlandos and Provenzano by piercing their helmets. At the hospital, defendant told
Sergeant Glynn: “I am completely satisfied, even though I got a broken arm attacking the
[d]eputies when they came in. I’m glad I did it.” Two days later, on March 31, 2013,
defendant spoke to Deputy Meza. Defendant admitted during that conversation he had
“tried to slash a couple of deputies in the neck” and had aimed for their necks. The
foregoing was substantial evidence defendant attempted to murder Sergeant Rojas and
Deputies Orlandos and Provenzano.


                                      C. Sentencing


                             1. Counts 13, 14, 16, 17 and 23



       Defendant was convicted in counts 13, 14, 16, 17 and 23 of non-violent, non-
serious felonies. As a result, he was sentenced indeterminate on those counts pursuant to
sections 667, subdivisions (e)(1) and (e)(2)(C), and 1170.12, subdivisions (c)(1) and
(c)(2)(C). The trial court erroneously designated count 2—as to which an indeterminate
term was imposed—as the principal term. (People v. Rodriguez (2011) 207 Cal.App.4th
204, 211-212; People v. Neely (2009) 176 Cal.App.4th 787, 797.) When imposing
determinate sentences, the principal term must be a determinate, not an indeterminate
term. The trial court thus neglected to correctly impose the principal term/subordinate
term methodology of section 1170.1. (People v. Nguyen (1999) 21 Cal.4th 197, 199-200,
207; accord, People v. Sasser (2015) 61 Cal.4th 1, 11.) There was no section 667,
subdivision (d) or section 1170.12, subdivision (b) prior conviction allegation with


                                            34
respect to count 16. Therefore, the trial court properly declined to double the sentence
imposed on count 16. The parties assert the trial court should have imposed two-year
sentences on counts 13 and 14, and 16-month sentences on counts 17 and 23. However,
we need not discuss this issue. Upon remittitur issuance, the trial court must resentence
defendant on the determinate terms and exercise its discretion as to which count to
designate as the principal term. (People v. Rodriguez, supra, 207 Cal.App.4th at pp. 211-
212; People v. Miller (2006) 145 Cal.App.4th 206, 216.)


                              2. Weapon use enhancements


       The trial court imposed section 12022, subdivision (b)(1) enhancements on counts
7 and 9. However, the jury found those allegations not true. Therefore, as the parties
agree, the judgment must be modified to omit those enhancements and the abstract of
judgment amended to so reflect.


                              3. Court facilities assessments


       The trial court failed to orally impose the Government Code section 70373,
subdivision (a)(1) court facilities assessments as to each count. The oral pronouncement
of judgment must be modified to so provide. (People v. Rosales (2014) 222 Cal.App.4th
1254, 1263; People v. Sencion (2012) 211 Cal.App.4th 480, 483-485.)


                           4. Prior serious felony convictions


       The jury found that defendant had been convicted on two distinct occasions of
making criminal threats in violation of section 422, subdivision (a). The jurors found that
defendant had been convicted of eight counts of making criminal threats in the Los
Angeles Superior Court case No. BA366400. Additionally, the jurors found the
defendant had been convicted of six counts of making criminal threats in Ventura County

                                            35
case No. 2008030495. A conviction for making a criminal threat is a serious felony. (§
1192.7, subd. (c)(32); People v. Banuelos (2005) 130 Cal.App.4th 601, 604.) However,
the trial court imposed no section 667, subdivision (a)(1) five-year enhancements on any
of the serious felony counts in the present case. We agree though with defendant that the
prosecution has forfeited the right to seek imposition of the section 667, subdivision
(a)(1) five-year prior conviction enhancements because: the information does not allege
the five-year enhancements; the jury was never instructed on the elements of a serious
prior conviction allegation; the prosecutor never argued such a finding should be returned
before the trial court or the jury; and the prosecutor never sought imposition of the
enhancements in it sentencing memorandum or in the argument of the deputy district
attorney at the sentencing proceeding. (People v. Najera (1972) 8 Cal.3d 504, 508-512;
People v. Salas (2001) 89 Cal.App.4th 1275, 1282; People v. Esquibel (1992) 3
Cal.App.4th 850, 858-859; People v. Anderson (1975) 50 Cal.App.3d 325, 334; People v.
Spencer (1972) 22 Cal.App.3d 786, 801-802.)



                               5. The abstract of judgment


       The abstract of judgment must fully comport with the oral pronouncement of
judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Vega (2015) 236
Cal.App.4th 484, 506.) The abstract of judgment must be modified to: omit the section
12022, subdivision (b)(1) enhancements on counts 7 and 9; to reflect that a sentence of 45
years to life was imposed on counts 1, 2 and 4 (plus enhancements); and state a sentence
of 25 years to life was imposed on counts 5 through 12, 18, 20 and 24 (plus
enhancements). The abstract of judgment in this case contains extensive material errors.
Parts of the abstract of judgment are illegible or unreadable. The best course of action is
to have the trial court personally supervise the preparation of the amended abstract of
judgment. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005)
128 Cal.App.4th 408, 425-426.)


                                             36
                                    IV. DISPOSITION


       The oral pronouncement of judgment is modified to impose the Government Code
section 70373, subdivision (a)(1) court facilities assessment as to each count. The
judgment is modified to omit the Penal Code section 12022, subdivision (b)(1)
enhancements imposed on counts 7 and 9. All of the determinate sentences are reversed
and the matter is remanded for resentencing as to those terms. Upon remittitur issuance,
the trial court shall exercise its discretion under Penal Code section 1170.1, subdivision
(a) as to counts 13, 14, 16, 17 and 23. The superior court clerk court, under the direct
supervision of the trial court, is to prepare an amended abstract of judgment that: omits
the Penal Code section 12022, subdivision (b)(1) enhancements as to counts 7 and 9; sets
forth the resentencing as to the determinate counts and the two 5-year prior serious felony
enhancements each serious felony count; that a sentence of 45 years to life was imposed
on counts 1, 2 and 4 (plus enhancements); and that a sentence of 25 years to life was
imposed on counts 5-12, 18, 20 and 24 (plus enhancements). The superior court clerk is
to deliver a copy of the amended abstract of judgment to the Department of Corrections
and Rehabilitation. The judgment is affirmed in all other respects.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P.J.
We concur:


              BAKER, J.                   KUMAR, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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