Filed 3/17/16 P. v. Gazcon CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069281

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF054356)

DAVID GAZCON, JR.

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Richard

Todd Fields, Judge. Affirmed.

         Boyce & Schaefer and Laura Schaefer for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland, Scott C. Taylor and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

         David Gazcon, Jr. appeals from a judgment entered after a jury convicted him of

first degree murder (Pen. Code,1 § 187, subd. (a); count 1) and active participation in a



1        Statutory references are to the Penal Code.
criminal street gang (§ 186.22, subd. (a); count 2). As to the murder conviction, the jury

found true the allegations that Gazcon (1) attempted to kidnap the victim within the

meaning of section 190.2, subdivision (a)(17)(B) (§ 207); (2) personally and intentionally

discharged a firearm causing great bodily injury and death to another person not an

accomplice within the meaning of section 12022.53, subdivisions (d) and (e); (3)

intentionally killed the victim while Gazcon was an active participant in a criminal street

gang and to further its activities (§ 190.2, subd. (a)(22)); and (4) committed the offense

for the benefit of the street gang within the meaning of section 186.22, subdivision

(b)(1)(C). The trial court sentenced Gazcon to life without the possibility of parole on

count 1, plus a consecutive term of 25 years to life based on the personal use of a firearm

enhancement. The court also sentenced him to one year four months on count 2, which it

stayed under section 654.

       Gazcon's sole contention is that the court erred by ordering him to wear shackles

during the trial instead of a less restrictive stun belt, and because the shackles were

visible to the jury, the error was prejudicial. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In September 2004, Gazcon and a fellow gang member drove Gabriel Lima out to

the desert where Gazcon fatally shot Lima in retaliation for him stealing Gazcon's money

and stereo.

       Before trial, deputy sheriffs restrained Gazcon while transporting him to court

because four months earlier, while Gazcon awaited trial in jail, he and three other inmates

physically assaulted four correctional officers. During the incident, Gazcon took

                                              2
possession of an officer's taser and used it against the other officers. A few weeks after

the incident, Gazcon wrote a letter threatening his former girlfriend's current lover: "I'm

going to cut your fucken [sic] head off. . . . This is one of my gun's [sic] 8 years ago,

can't wait to show you my new one." The letter included photographs of a handgun and a

deceased male body.

       On the court's own motion, it tentatively ruled Gazcon should be restrained during

trial, reasoning that if Gazcon could take a taser from an officer in the secure confines of

a jail, he likely could take a gun from an officer in a less secure courtroom. At the

hearing, defense counsel said Gazcon preferred shackles that would not be visible to the

jury. The court stated that based on its prior experience the shackles would not be visible

to the jury.

       The next day, Gazcon changed his position and requested he wear a stun belt on

his leg instead of shackles, which might be visible to the jury. Although a deputy sheriff

interjected during the proceedings that a stun belt alone "was an option," the court denied

Gazcon's request, concluding the shackles were less restrictive than the stun belt and

would provide a greater measure of safety during trial: "I feel like this is a lesser means

of accomplishing the same goal. Actually I think it will lead to the likelihood of less

opportunity for escape. Because if he has the REACT [Remote Electronically Activated

Control Technology] belt, he could jump up and take off running. He might fight

through it."

       During jury selection, defense counsel renewed her objection to the shackles: "I

took the liberty of sitting in various seats of this first row to your Honor's right, and the

                                               3
second row and parts of the third row, and each one of those seats has an absolute dead-

on view of Mr. Gazcon's leg shackles." The court did not alter its order but replied:

"That may be. But it certainly is a different view when you're seated there versus when

you're not seated there. Because depending on the angle, your legs are parallel with the

gentleman's legs. Depending, they may or may not see the chains. I'm not sure. I think

that's probably reasonable." During the entire trial, the court took the additional

precaution of requiring everyone in the courtroom to remain seated when the jury entered

so as not to draw attention to Gazcon's shackles.

       At defense counsel's request, the court read CALCRIM No. 204 to the jury: "The

fact that physical restraints have been placed on the defendant is not evidence. Do not

speculate about the reason. You must completely disregard this circumstance in deciding

the issues in this case. Do not consider it for any purpose or discuss it during your

deliberations."

       Following his convictions, Gazcon filed a motion for new trial, arguing that his

visible shackles had prejudiced him and deprived him of due process. Gazcon claimed he

"was unable to humanize himself in front of the jurors" because of his "complete lack of

movement," "there was no way to know whether some of the jurors actually saw the

shackles and chains," and because defense counsel could see the shackles during jury

selection, actual jurors could have seen them during trial. Defense counsel argued she

"was forced" to request a jury instruction "out of an abundance of caution," thus alerting

the jury that Gazcon had worn shackles. The court denied the motion, relying on its

pretrial ruling.

                                              4
                                       DISCUSSION

       Gazcon contends the court abused its discretion by denying his request to wear a

stun belt rather than shackles during trial, arguing the court erroneously assumed "the

stun belt was a less secure option for preventing [his] escape and harm to the trial

participants," and he was prejudiced because the shackles were visible to the jury.

A. Legal Principles/Standard of Review

       The California Supreme Court has long held that placing physical restraints on a

defendant during trial "without evident necessity . . . prejudicially affect[s] his

constitutional rights of defense." (People v. Duran (1976) 16 Cal.3d 282, 288 (Duran),

quoting People v. Harrington (1871) 42 Cal. 165, 168.) Within the bounds of due

process requirements, a trial court may exercise its discretion to order the use of physical

restraints during trial. (Deck v. Missouri (2005) 544 U.S. 622, 629; People v. Gamache

(2010) 48 Cal.4th 347, 367 (Gamache).)

        "[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." (Duran, supra, 16 Cal.3d at pp. 290-291.) When making its

determination, 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.' " (Gamache, supra, 48 Cal.4th at p. 367, quoting 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." (Gamache, at p. 367.)

                                               5
       A trial court cannot adopt a blanket policy to impose physical restraints on

defendants and cannot base its decision on the charges alone. (Duran, supra, 16 Cal.3d

at p. 293.) The determination must be made on a case-by-case basis and be "most

suitable for a particular defendant in view of the attendant circumstances." (Id. at

pp. 291, 293.) If the record shows restraints are necessary, the court "should select the

least obtrusive method that will be effective under the circumstances." (Gamache, supra,

48 Cal.4th at p. 367.) We review the court's decision to impose physical restraints on a

defendant for abuse of discretion. (Duran, at p. 291.)

       The trial court abuses its discretion where the record lacks a showing "of violence

or a threat of violence or other nonconforming conduct." (Duran, supra, 16 Cal.3d at

p. 291.) A formal hearing is not required to show manifest need for physical restraints,

but "the record must show the court based its determination on facts, not rumor and

innuendo" (People v. Stevens (2009) 47 Cal.4th 625, 633) and did not simply "defer

decisionmaking authority to law enforcement officers." (Id. at p. 642.)

       If a manifest need for physical restraints exists but the jury can see the restraints

during trial, the court must instruct the jury not to take the restraints into consideration in

any way during deliberations. However, if the restrains are not visible to the jury, no

instruction should be given unless the defendant requests it. (Duran, supra, 16 Cal.3d at

pp. 291-292.) Furthermore, the use of physical restraints during trial "even if error, [is]

harmless if there is no evidence that the jury saw the restraints, or that the shackles

impaired or prejudiced the defendant's right to testify or participate in his defense."

(People v. Anderson (2001) 25 Cal.4th 543, 596.)

                                               6
       In People v. Mar (2002) 28 Cal.4th 1201 (Mar), the California Supreme Court

held the use of stun belts is subject to the same limitations set forth in Duran as

traditional methods of physical restraints. (Mar, at p. 1205.) A trial court should not

order the use of a stun belt over traditional physical restraints if the court finds "the

device more onerous than necessary to satisfy the court's security needs." (Id. at p. 1206.)

       Mar also recognized that stun belts may impose additional health concerns. (Mar,

supra, 28 Cal.4th at p. 1228.) "In light of the substantial physical harm that may result

when the device is activated, any significant doubt as to the reliability of the stun belt

renders even more suspect the general assumption that a stun belt is a less onerous or

restrictive alternative to traditional security measures." (Id. at p. 1229.) If a trial court

determines a stun belt is appropriate, it must first "require assurance that a defendant's

medical status and history has been adequately reviewed and that the defendant has been

found to be free of any medical condition that would render the use of the device unduly

dangerous." (Id. at pp. 1205-1206.) The trial court "may approve the use of a stun belt

only if it determines that the use of the belt is safe and appropriate under the particular

circumstances." (Id. at p. 1230.)

B. Analysis

       On our review of the record, we conclude the trial court did not abuse its

discretion when it ordered Gazcon to wear shackles instead of a stun belt during trial.

"To establish an abuse of discretion, defendants must demonstrate that the trial court's

decision was so erroneous that it 'falls outside the bounds of reason.' A merely debatable



                                               7
ruling cannot be deemed an abuse of discretion." (People v. Bryant (2014) 60 Cal.4th

335, 390.)

       At the pretrial hearing, the court reviewed the sheriff's department report

describing the incident at the jail and Gazcon's threatening letter, and it found there was a

"manifest need" for physical restraints because Gazcon had engaged in violent and

"nonconforming conduct" (Duran, supra, 16 Cal.3d at pp. 290-291) that posed a

significant safety concern for the court. Gazcon does not dispute this finding.

       The court also properly exercised its discretion in determining that using shackles

was the least restrictive method to address its security concerns. Gazcon initially

preferred the shackles because he was "concerned about any accidental activation" of the

stun belt. After trying on the shackles, he changed his mind and requested the stun belt,

which he believed would not psychologically impact him. At that time, Gazcon

considered the stun belt "the more severe restraint" but made the request anyway. On

appeal, Gazcon has changed his position and now argues the stun belt would have been

less restrictive than the shackles. Nonetheless, Gazcon's preference for the stun belt was

not determinative. The court must give "considerable weight" to Gazcon's perspective

only to the extent that it satisfies the court's legitimate security concerns. (Mar, supra, 28

Cal.4th at p. 1206.) Here, the court stated the stun belt would not eliminate the

possibility of escape or violent incident because Gazcon could "jump up" or "fight

through it." The court reasonably concluded that shackles were the least restrictive

option based on its prior experience and the inherent dangers associated with the use of

stun belts.

                                              8
C. Any Presumed Error was Harmless

       Though we have concluded the court did not abuse its discretion in ordering

Gazcon to wear shackles during the trial, if we assumed error, it would nevertheless be

harmless. Although Gazcon asserts the shackles were visible to the jury, there is no

evidence that the jury actually saw them. Defense counsel's "experiment" during jury

selection was not conclusive on the question of whether the jury saw the shackles. The

California Supreme Court has "consistently found any unjustified or unadmonished

shackling harmless where there was no evidence it was seen by the jury." (People v.

Tuilaepa (1992) 4 Cal.4th 569, 583-584.) In any event, the jury was instructed with

CALCRIM No. 204 to completely disregard the defendant's physical restraints. "[T]he

general rule is that on appeal we must assume the jury followed the court's instructions

and admonitions." (People v. Frank (1990) 51 Cal.3d 718, 728.) The court also ordered

those in the courtroom to remain seated when the jury was present to minimize undue

attention to Gazcon's restraints. Under these circumstances, it is not reasonably probable

Gazcon would have obtained a more favorable verdict had he worn the stun belt during

trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)




                                            9
                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




                                      10
