                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 15 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


FREDERICO GONZALEZ,                              No. 08-56909

              Petitioner - Appellee,             D.C. No. 2:01-cv-00300-FMC-
                                                 JTL
  v.

CHERYL PLILER, Warden,                           MEMORANDUM*

              Respondent - Appellant.



FREDERICO GONZALEZ,                              No. 08-56955

              Petitioner - Appellant,            D.C. No. 2:01-cv-00300-FMC-
                                                 JTL
  v.

CHERYL PLILER, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Florence-Marie Cooper, District Judge, Presiding

                       Argued and Submitted April 7, 2010
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FRIEDMAN,** D.W. NELSON, and REINHARDT, Circuit Judges.

      In a prior decision, we held that Frederico Gonzalez’s due process rights had

been violated when he was made to wear a “stun belt” throughout his trial. See

Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003). We remanded for an evidentiary

hearing to determine if the error was prejudicial. Following our decision, the state

filed a petition for rehearing, in which it contended that Gonzalez had procedurally

defaulted his stun belt claim. In response, we expanded our remand order to direct

the district court to consider the procedural default issue in addition to the question

of prejudice.

      Following a hearing, the district court determined that the claim was not

procedurally barred and that the error was prejudicial. The court granted

Gonzalez’s habeas petition. The state appeals. We affirm. Because we do so, we

do not decide Gonzalez’s cross-appeal of the district court’s denial of certificates

of appealability on the issues of juror misconduct and cumulative error.

                                          I.




      **
        The Honorable Daniel M. Friedman, United States Circuit Judge for the
Federal Circuit, sitting by designation.


                                     Page 2 of 9
      We first address the state’s argument that we are barred from reviewing

Gonzalez’s stun belt claim because the state court’s ruling on that claim rested on

an “independent” and “adequate” state ground. See Melendez v. Pliler, 288 F.3d

1120, 1124 (9th Cir. 2002). We conclude that the procedural rule on which the

state court rested its decision is not “clear, consistently applied, and well-

established.” Id. It thus does not provide an “adequate” ground for the state

court’s decision, and does not bar our review. Id.

       It is undisputed that Gonzalez made a timely objection to his stun belt at

trial. Before the California Court of Appeal, he opposed the belt on the same

ground that he had raised below: that there had been no showing of compelling

need for restraint. The Court of Appeal reached the question of the belt’s

constitutionality, and concluded that the belt was constitutional — a conclusion

that we subsequently held to be an unreasonable application of clearly established

federal law. See Gonzalez, 341 F.3d at 904. The California Court of Appeal also

held, in the alternative, that even if it had been error to require Gonzalez to wear

the belt, the error was harmless. With respect to harm, however, the court refused

to consider whether the belt had interfered with Gonzalez’s ability to communicate

with his attorney, “impaired his thinking,” or “somehow abridged his defense,”

because he had not argued at trial that the belt would have those effects.


                                      Page 3 of 9
      The state now argues that we are precluded from reviewing Gonzalez’s stun

belt claim because the Court of Appeal’s holding of harmlessness is adequately

supported on a state procedural ground, namely, California’s contemporaneous

objection rule. We have recognized that California’s contemporaneous objection

rule is a “clear, consistently applied, and well-established” procedural bar to

appellate review when a party has failed to make a timely objection. Melendez,

288 F.3d at 1125. However, neither the California Court of Appeal’s decision in

this case nor the state’s arguments before this court has revealed any case prior to

this one in which the contemporaneous objection rule was applied to bar appellate

review where a party timely objected to a court ruling but failed to specify the

prejudice that would result if his objection was not sustained.

      The California Court of Appeal cited only one case in support of its assertion

of the rule that prejudice not alleged at trial will not be considered on appeal. That

case, People v. Garcia, 66 Cal. Rptr. 2d 350 (Cal. Ct. App. 1997), overruled on

other grounds by People v. Mar, 52 P.3d 95 (Cal. 2002), does not show that any

such rule has been consistently applied by the California courts or that it has been

applied at all. Garcia involved a defendant who “switch[ed] theories on appeal.”

Id. at 354. The constitutional question in that case was whether a stun belt

constituted a restraint. The trial court had held that it did not, because it did not


                                      Page 4 of 9
restrain the defendant’s movements. Id. at 353. On appeal, the defendant argued

that it did, because it restrained him in a psychological sense. Id. at 354. Because

he had not raised that theory below, the appellate court refused to consider it.

Right or wrong, and we suspect wrong, the decision does not stand for the

proposition that a defendant must specify the prejudice that will result from a

constitutional violation when he objects to a ruling on the ground that the

challenged action violates a particular constitutional provision. Even if Garcia

were similar to the present case, however, it in itself would not establish a rule that

is “clear, consistently applied, and well established.” Pliler, 288 F.3d at 1124.

More cases than one would be necessary.

      In this case, there was no issue as to whether Gonzalez’s stun belt

constituted a restraint. Rather, the only issue was whether the state showed

“compelling circumstances” that justified requiring Gonzalez to wear a stun belt

during trial. See Gonzalez, 341 F.3d at 900-01, 904. The state does not dispute

that this issue was timely raised, nor does it assert that Gonzalez “switch[ed]

theories” on appeal as to why the stun belt was unjustified. Garcia, 66 Cal. Rptr.

2d at 354. Rather, it asserts that, despite timely raising his objection to the stun

belt, and making consistent arguments at trial and on appeal as to why he should

not have been required to wear the belt, Gonzalez procedurally defaulted his claim


                                     Page 5 of 9
because at the time he raised his objection, he failed to identify the prejudice that

would result from wearing it. There is no need to show prejudice at all, however,

where the defendant simply asserts that there are no “compelling circumstances”

and requests that the order requiring him to wear the belt be withdrawn.

       For the reasons set forth above, we conclude that the state procedural bar

applied here was not “adequate,” and thus does not preclude us from reviewing

Gonzalez’s claim. Melendez, 288 F.3d at 1126.

                                           II.

       The district court held that Gonzalez was prejudiced by the stun belt. The

state argues that, in so holding, the district court erred by rejecting the magistrate

judge’s factual findings without conducting a de novo evidentiary hearing. The

state is in error.

       The evidentiary hearing below was conducted by a magistrate judge. During

the hearing, both documentary evidence and Gonzalez’s testimony established that

prior to the start of his trial, a bailiff showed and read to him a notice stating that

his stun belt was “capable of delivering an impulse of 50,000 volts” and that it

“could be remotely activated” if he “communicat[ed] with persons in [his]

immediate vicinity.” He did not tell Gonzalez that he could talk to his attorney.

Gonzalez, his trial counsel, and four of the trial jurors, all testified that Gonzalez


                                      Page 6 of 9
never initiated conversation with his attorney during the trial. The magistrate

judge did not question the evidence regarding the bailiff’s instructions, nor did she

question the evidence that Gonzalez had never initiated conversation with his

attorney. Nonetheless, she concluded that the belt had not “substantially interfered

with” Gonzalez’s right to communicate with his attorney during trial.

      The district court was not bound by the magistrate judge’s ultimate

conclusion regarding prejudice. In fact, it was obligated to review that conclusion

without deference to the magistrate judge. See 28 U.S.C. § 636(b). Although the

district court might have been obligated to conduct a de novo evidentiary hearing

had it rejected the factual findings underlying the magistrate judge’s conclusion

about prejudice, see United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir.

2002), it was not obligated to conduct a new hearing before accepting, but drawing

different legal conclusions from, the magistrate judge’s factual findings. That is

what the district court did in this case: it accepted the magistrate judge’s findings

that Gonzalez had been warned that his stun belt could be activated if he spoke

with anyone, and that he thereafter did not communicate with his attorney during

trial. The district court then held, contrary to the magistrate judge’s conclusion,

that those findings warranted a determination of prejudice. The district court was




                                     Page 7 of 9
not required to hold a de novo evidentiary hearing before arriving at that

conclusion.

                                         III.

      The complete deprivation of counsel at a critical stage of a criminal

proceeding is structural error. See United States v. Cronic, 466 U.S. 648 (1984);

see also Musladin v. LaMarque, 555 F.3d 830, 837 (9th Cir. 2009). Where a

defendant has been denied counsel at a critical stage, no showing of prejudice need

be made to obtain habeas relief. Musladin, 555 F.3d. at 834, 836-38.

      In Geders v. United States, 425 U.S. 80 (1976), the Supreme Court held that

a trial court had deprived a criminal defendant of assistance of counsel when it

instructed him not to discuss his case with his lawyer during an overnight recess.

In this case, it is undisputed that Gonzalez was informed, both orally and in

writing, that he could be subject to a 50,000 volt shock if he “communicate[d] with

persons in his immediate vicinity” during his trial. Gonzalez subsequently wore a

stun belt throughout his entire trial and, while the trial was in progress, refrained

from communicating with his lawyer. It is self-evident that the trial itself is a

critical stage of the proceeding. Cf. United States v. Miguel, 111 F.3d 666 (9th Cir.

1997) (recognizing defendant’s constitutional right to communicate

contemporaneously with his counsel during the testimony of a key prosecution


                                     Page 8 of 9
witness). Because Gonzalez was prevented from communicating with his lawyer

during trial, we conclude that the error was structural.1 Accordingly, we AFFIRM

the district court’s decision to grant habeas relief.



      AFFIRMED.




      1
        The state contends that the law of the case dictates the application of the
Brecht harmless error standard. See Brecht v. Abrahamson, 507 U.S. 619 (1993).
In our prior decision in this case, we noted that “shackling, except in extreme
forms, is susceptible to [Brecht] harmless error analysis,” and we remanded for a
hearing on prejudice. Gonzalez, 341 F.3d at 903 (emphasis added). As explained
above, the evidence at the subsequent evidentiary hearing showed Gonzalez’s stun
belt to be an “extreme form[]” of restraint in that he was told that he could be
subject to a 50,000 volt shock if he communicated with his attorney and thereafter
did not communicate with him. Id. Accordingly, it is not inconsistent with the law
of the case to hold now that Brecht does not apply.
       We also observe that, although the district court found prejudice under the
Brecht standard, “[w]e may affirm the district court’s decision on any ground
supported by the record, even if it differs from the district court’s rationale.”
Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004).

                                      Page 9 of 9
