Filed 11/4/14 P. v. Orrison CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049042

         v.                                                            (Super. Ct. No. P00075)

WILEY JOSEPH ORRISON,                                                  OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Affirmed.
                   Marianne Harguindeguy, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Kristen Kinnaird Chenelia and Christopher Beesley, Deputy Attorneys General, for
Plaintiff and Respondent.
                                             *               *               *
                                       INTRODUCTION
              Defendant Wiley Joseph Orrison appeals from the trial court’s order finding
Orrison violated the terms of his parole, reinstating his parole, and committing him to
Orange County jail for 120 days. He contends the court violated his constitutional rights
to due process and to the effective assistance of counsel by requiring Orrison to remain in
what his attorney called the “cage” inside the courtroom instead of being seated at his
counsel’s table during the parole revocation hearing. Orrison also contends the court
violated his constitutional right to confrontation by admitting evidence of the results of
field testing of substances found during a search of his residence.
              We affirm. Our review of the record shows Orrison was represented by
counsel at the parole revocation hearing and the trial court ensured Orrison’s access to his
counsel and ability to speak with his counsel throughout the hearing. That Orrison was
seated inside the cage during the hearing did not, in and of itself, constitute a violation of
his constitutional rights. Even if the trial court erred by denying counsel’s request that
Orrison be seated with his counsel, Orrison has not shown how he was prejudiced. Were
we to assume the court erred by admitting evidence that field testing of the brown liquid
in the syringe and the white crystalline substance in the baggies showed the presence of
heroin and methamphetamine, respectively, any such error was harmless beyond a
reasonable doubt.


                                            FACTS
              On July 8, 2013, Garden Grove Police Officer Paul Tessier went to
Orrison’s residence in Garden Grove, where he spoke with Orrison and two other
residents. Orrison appeared very agitated and nervous; he was sweating. Orrison told
Tessier that he was on parole. Tessier searched the residence. Near the bed in Orrison’s
bedroom, Tessier found a hypodermic syringe that contained a brown liquid. Tessier
conducted a field test on the brown substance by using a “NIK” test. The test caused the

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substance to change to a color which the test’s packaging stated reflects the presence of
heroin (Tessier could not recall what color the substance changed to when tested, but he
recalled that the color change matched the “heroin” color stated on the test’s packaging).
              In a bathroom of Orrison’s residence, Tessier found a black Nintendo DS
zippered pouch that contained a glass smoking pipe of the type used for smoking
methamphetamine and two clear plastic baggies containing a white crystalline substance.
He used the NIK test to identify the white crystalline substance. The color of the white
crystalline substance changed to match the color on the test’s packaging, which identified
the presence of methamphetamine. Tessier weighed the two baggies; one weighed
12.5 grams and the other weighed 9.1 grams. The black zippered pouch also contained a
digital scale, two baggies containing miscellaneous pills, and two smaller baggies, each
of which contained a brown tar-like substance.


                                 PROCEDURAL HISTORY
              On July 22, 2013, the California Department of Corrections and
Rehabilitation filed a petition for the revocation of Orrison’s parole under Penal Code
section 3000.08. The petition stated that Orrison had been sentenced to state prison for
violating Vehicle Code section 2800.2 (disregard for safety), and, while in prison, he was
convicted of conspiracy to introduce a controlled substance into prison and assault with a
deadly weapon, for which he was sentenced to a five-year prison term and a two-year
prison term, respectively. The petition also stated he was paroled on May 11, 2013, on
terms and conditions including that he “[v]iolate [n]o [l]aw.” The petition alleged that on
July 8, 2013, however, police officers contacted Orrison in “the company of other known
parolees and/or probationers” at a residence where the officers found drugs and drug
paraphernalia. Orrison was arrested and charged with possession for sale of heroin,
morphine, and methamphetamine “with two strike allegations.”



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              At the arraignment on the petition for the revocation of parole, the trial
court found probable cause for issuance of the petition and scheduled a hearing. At the
hearing, which took place in a “makeshift courtroom at the jail,” Orrison’s counsel
requested that Orrison be permitted to sit at his counsel’s table instead of remaining in the
cage inside the courtroom. The trial court denied the request.
              Tessier was the only witness to testify at the hearing. The court found
Orrison in violation of his parole. The court ordered Orrison’s parole reinstated, with
“[a]ll terms and conditions of parole to remain the same,” and further ordered that
Orrison serve 120 days in Orange County jail, for which he received actual and conduct
credits totaling 77 days. Orrison appealed.


                                        DISCUSSION
                                              I.

The Trial Court Did Not Err by Denying Orrison’s Counsel’s Request That Orrison Sit at
             His Counsel’s Table During the Parole Revocation Hearing.
              Orrison contends his confinement in a cage inside the courtroom during his
parole revocation hearing deprived him of his constitutional rights to due process and the
effective assistance of counsel. For the reasons we will explain, Orrison’s argument is
without merit.
              In People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153, the California
Supreme Court summarized the procedural safeguards required by the federal
Constitution for parole and probation revocation proceedings, stating in part: “In 1972,
in Morrissey [v. Brewer (1972) 408 U.S. 471], the [United States Supreme C]ourt defined
the minimal due process requirements for parole revocation, recognizing that parolees
enjoy a ‘conditional liberty’ requiring constitutional protection [citation], and that both
the parolee and society have a stake ‘in not having parole revoked because of erroneous
information or because of an erroneous evaluation of the need to revoke parole . . . .’


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[Citation.] Morrissey set forth a two-step procedure required in order to afford parolees
due process of law: an initial preliminary hearing to determine whether probable cause
exists to believe that a parole violation has occurred, and thus to justify temporary
detention, and a more formal, final revocation hearing requiring factual determinations
and a disposition based upon those determinations. [Citation.] [¶] In discussing the
minimum constitutional requirements applicable to the final revocation proceeding,
Morrissey held that due process requires ‘(a) written notice of the claimed violations of
parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard
in person and to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as
a traditional parole board, members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence relied on and reasons for
revoking parole.’ [Citation.] At the same time, Morrissey emphasized that ‘the process
should be flexible enough to consider evidence including letters, affidavits, and other
material that would not be admissible in an adversary criminal trial’ [citation].”
(Fn. omitted.)
                 Orrison does not contend he was deprived of any of the procedural
safeguards expressly identified in Morrissey v. Brewer, supra, 408 U.S. at
pages 1152-1153, at his parole revocation hearing. Although Orrison was represented by
counsel at the hearing, he argues his constitutional rights to due process and to the
effective assistance of counsel were violated because the trial court denied his counsel’s
request that Orrison sit at his counsel’s table. Orrison argues that his being confined in
the cage resulted in him being physically too far away from his counsel to effectively and
confidentially communicate with him during the hearing. He further argues his
communication difficulties were exacerbated by the noise level in the room, primarily
caused by the opening of a door to a holding area of the jail facility. Orrison also argues

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that “[c]onfining [him], who had not been found guilty of anything, during the hearing
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hurts the integrity of the system and [his] ability to present his case effectively.”
              Although the trial court denied Orrison’s counsel’s request that Orrison be
seated at his counsel’s table, the court ensured Orrison’s access to, and ability to
effectively communicate with, counsel, and thus to defend himself, throughout the
hearing by (1) permitting Orrison’s counsel to move counsel’s table closer to the cage
and inviting Orrison’s counsel to sit anywhere he wished in the courtroom, including in a
chair next to the cage; (2) directing that the other prisoner seated in the cage be removed
for the duration the hearing; (3) asking Orrison’s counsel whether he needed time to
speak with Orrison, and repeatedly permitting Orrison and counsel to converse whenever
requested; (4) directing security personnel to move away from where Orrison and his
counsel were conversing so that their conversations would not be overheard;
(5) permitting Orrison’s counsel to provide Orrison with paper and a pencil; (6) adjusting
where in the courtroom Tessier sat when he testified to maximize his visibility to Orrison

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            Orrison contends: “The right of a criminal defendant to sit next to defense
counsel in the courtroom, and to appear there unconfined absent a finding of manifest
need[,] have been long established in criminal trials.” But “Morrissey [v. Brewer] did not
equate parole revocation hearings with criminal prosecutions in any sense, and the court
left it to the states to determine flexible procedural rules for implementing its minimal
due process requirements.” (People v. Racklin (2011) 195 Cal.App.4th 872, 879.)
Generally, trial courts have been required to make a finding of the existence of a
“manifest need” before restraining a criminal defendant in the context of courtroom
proceedings in the jury’s presence. (People v. Duran (1976) 16 Cal.3d 282, 290-292; see
Deck v. Missouri (2005) 544 U.S. 622, 632; but see also People v. Fierro (1991) 1
Cal.4th 173, 219-220 [“the unjustified use of restraints could, in a real sense, impair the
ability of the defendant to communicate effectively with counsel [citation], or influence
witnesses at the preliminary hearing”].) Orrison has not cited any legal authority that
requires the trial court to make a finding that a manifest need exists before restraining a
criminal defendant (in the form of shackles or being seated in a cage) in the context of a
parole revocation hearing. In any event, and as discussed post, the record does not show
Orrison’s ability to communicate with his counsel was materially impaired or that he
otherwise suffered any prejudice as a result of the court’s denial of his counsel’s request
Orrison be seated at his counsel’s table.

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and his counsel; and (7) directing the prosecutor and Tessier to enunciate so that they
could be clearly heard by everyone in the courtroom.
              When Orrison’s counsel commented on the number of jail and other
personnel in the courtroom, who he thought were in a position to possibly overhear
counsel’s conversations with Orrison, the trial court asked, “[h]ow is that different than in
a trial where the defendant is seated next to you at a table and the prosecutor is seated
right there and the bailiff is there and the court reporter is there?” The court stated: “The
court does not see any difference in that situation from this situation. Obviously, the
defendant is going to have to whisper just like they have to whisper in a trial court. And
I’m creating a situation where the defendant can talk to his [counsel] right now and have
that conversation in probably a more confidential situation than in a trial court.” The
court also stated for the record that Orrison was not in shackles.
              Orrison’s counsel complained about noise coming from the opening of a
door to other holding areas in the jail. The court asked the prosecutor to reask the
question he had asked Tessier before counsel’s objection. The court later added that any
difficulty in hearing was due to Tessier’s and the prosecutor’s mumbling, not to
“extraneous noise”; as discussed ante, the court directed them to enunciate clearly.
Orrison’s counsel again expressed trouble hearing “because of noise that is emanating
from the doors five feet to my right which lead to holding tank areas.” The court asked
Orrison’s counsel if he wished to have any questions read back. Orrison’s counsel
requested a readback, and the court granted that request and directed the court reporter to
do so.
              Orrison’s counsel informed the court he was still having trouble
concentrating while sitting next to the cage and the door to the holding area because of
the noise which he found “very disturbing, irritating and interrupting [his] train of
thought.” The court offered Orrison’s counsel a break. The court also stated: “Sir, I’m
not ordering that you have to sit there. I gave you that as a suggestion when your client

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wanted to have a conversation with you. You are welcome to sit anywhere in the
courtroom you want to sit. [¶] And if your client would like to speak with you, then you
may step back there and speak with your client. But I’m not requiring that you sit there.
You may sit anywhere you want.”
              Orrison’s counsel asserted that on six occasions during the hearing, Orrison
had attempted to communicate with him. The trial court responded by stating that
counsel’s statement was contrary to the court’s observation. The court further stated it
had observed Orrison only once attempting to communicate with his counsel, and that the
court’s “eyes have been mostly trained on that because you have brought that to the
court’s attention.”
              Orrison argues the trial court’s failure to allow him to sit at his counsel’s
table instead of in the cage “hurts the integrity of the system” because Orrison had not yet
been found guilty of anything. Orrison’s argument is without merit because, unlike a
criminal defendant standing trial for charged offenses, “a convicted felon released on
parole is subject to substantial restraints on his liberty and is deemed to remain in the
constructive custody of the Department of Corrections and Rehabilitation.” (People v.
Nuckles (2013) 56 Cal.4th 601, 609.)
              Although the seating arrangement during the parole revocation hearing was
not ideal from Orrison’s counsel’s perspective, any inconvenience that arose from the
trial court’s denial of Orrison’s counsel’s request Orrison be seated at his counsel’s table
did not amount to a deprivation of Orrison’s rights to due process or the effective
assistance of counsel.
              Even assuming for the purposes of argument the trial court erred by
denying Orrison’s counsel’s request, Orrison has failed to show how he was prejudiced,
particularly in light of the trial court’s continuing efforts to ensure Orrison’s access to,
and ability to communicate with, his counsel. In his appellate briefs, Orrison contends
the trial court’s order constituted structural error that did not require a showing of

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prejudice. Orrison has not cited to any applicable legal authority, and we have found
none, that supports his position.


                                               II.

                   Any Error in Admitting the Results of the NIK Field Tests
                         Was Harmless Beyond a Reasonable Doubt.
                 Orrison argues that at the parole revocation hearing, the admission of
evidence regarding the results of the NIK tests, identifying substances found in Orrison’s
residence, violated his constitutional right of confrontation. He argues, “while
Officer Tessier conducted the final piece of the NIK chemical test, he is not the scientist
responsible for the test. Officer Tessier did not know what the test consisted of, how it
worked, who had assembled it, or whether it was accurate. . . . In fact, he was not even
able to recall what color the test was supposed to turn in the presence of heroin or
methamphetamine. . . . Therefore, cross[-]examining Officer Tessier offered little benefit
to [Orrison].”
                 We do not need to address whether the trial court erred by admitting the
evidence of the NIK test results showing the presence of heroin in the syringe and
showing the presence of methamphetamine in the baggies containing a white crystalline
substance because, even assuming admitting that evidence constituted error, any such
error was harmless beyond a reasonable doubt.
                 Confrontation clause violations are subject to federal harmless error
analysis under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Lewis (2008)
43 Cal.4th 415, 461.) This standard provides, “an otherwise valid conviction should not
be set aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt. [Citations.]” (Delaware v.
Van Arsdall (1986) 475 U.S. 673, 681.) “Whether such an error is harmless in a
particular case depends upon a host of factors, all readily accessible to reviewing courts.


                                                9
These factors include the importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case. [Citations.]” (Id. at p 684.)
              The prosecution must prove a parole violation by the preponderance of the
evidence standard, as opposed to the beyond a reasonable doubt standard applicable to
criminal trials. (Pen. Code, § 3044, subd. (a)(5) [“Parole revocation determinations shall
be based upon a preponderance of evidence admitted at hearings including documentary
evidence, direct testimony, or hearsay evidence offered by parole agents, peace officers,
                   2
or a victim.”].)
              Here, the evidence presented at the parole revocation hearing consisted of
the uncontroverted testimony of Tessier. Orrison neither called witnesses in his defense
nor presented any affirmative defenses. Tessier testified that on July 8, 2013, when he
encountered Orrison, he observed Orrison to be nervous, agitated, and sweaty. In the
course of a parole search of Orrison’s residence, Tessier testified he had found a
hypodermic syringe containing a brown liquid, in Orrison’s bedroom, and, in the
bathroom, he had found a black zippered pouch containing a glass pipe Tessier identified
as the type commonly used to smoke methamphetamine, two baggies containing a white
crystalline substance, two baggies containing a brown tar-like substance, two baggies
containing pills, and a digital scale. These items are commonly found in the context of


       2
          Penal Code section 3044, subdivision (a)(6) provides: “Admission of the
recorded or hearsay statement of a victim or percipient witness shall not be construed to
create a right to confront the witness at the hearing.” (See People v. Racklin, supra, 195
Cal.App.4th at p. 879 [reiterating the United States Supreme Court’s statement in
Morrissey v. Brewer, supra, 408 U.S. at page 489, that the parole revocation process
“‘should be flexible enough to consider evidence . . . that would not be admissible in an
adversary criminal trial’”].)

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possession of illegal drugs, if not possession of illegal drugs for the purpose of sale.
Even if the trial court had not admitted the NIK testing results showing the presence of
heroin in the syringe and methamphetamine in the baggies, we conclude that it is beyond
a reasonable doubt the trial court would have found, by a preponderance of the evidence,
that Orrison was in possession of illegal drugs and drug paraphernalia in violation of his
parole condition that he violate no law.


                                        DISPOSITION
              The order is affirmed.




                                                  FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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