People v. Weisner CA3 ( 2022 )

Filed 12/16/22 P. v. Weisner CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095872
Plaintiff and Respondent, (Super. Ct. No. 21FE010891)
v.
FRANKIE JAMES WEISNER,
Defendant and Appellant.
Appointed counsel for defendant Frankie James Weisner filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) Defendant filed a supplemental brief arguing he was not brought to trial within 90
days of delivering appropriate notice to the district attorney, he was forced to wear
physical restraints at trial without a showing of manifest need , and the People committed
misconduct at trial. After examining the record and considering defendant’s contentions
in his supplemental brief, we find no arguable error that would result in a disposition
more favorable to defendant and affirm.
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BACKGROUND
While defendant was serving his term in prison for a different offense, a
correctional officer found “a small piece of metal, sharpened to the tip” in defendant’s
cell on November 18, 2020. The People charged defendant with possession of a sharp
instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a))1 , and
alleged a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12).
At the pretrial conference, defendant objected to the trial date, alleging he
deposited a section 1381 demand into the prison mail system on October 11, 2021, thus
entitling him to a trial date within 90 days of October 11, 2021. The district attorney, on
the other hand, claimed her office received the demand on October 14, 2021. The trial
started on January 10, 2022. The next day, a jury found defendant guilty and found true
the prior felony allegation. The trial court sentenced defendant to four years in state
prison. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised that he may, within 30 days of the filing of the
opening brief, file a supplemental brief to address any issues he believes deserve review.
Defendant filed a supplemental brief, arguing: (1) the trial court lacked
jurisdiction to sentence him because he was not brought to trial within 90 days of his
section 1381 demand; (2) the trial court violated his right to a fair trial because he was
forced to wear physical restraints absent a showing of manifest need ; and (3) the People
committed prosecutorial misconduct by requestioning witnesses who had already
1 Further undesignated statutory references are to the Penal Code.
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testified. He further requests us to review the trial court’s denial of all of his motions.
We reject all of defendant’s claims.
I
Section 1381 Demand
Section 1381 provides, in pertinent part, that a state prisoner may demand to be
brought to trial within 90 days of delivering appropriate notice to the district attorney.
The 90-day period starts when the district attorney receives the demand. (Reynolds v.
Superior Court (1980) 113 Cal.App.3d 510, 513.)
Here, the district attorney received the section 1381 demand on October 14, 2021.
Ninety days from October 14, 2021, was January 12, 2022. The trial started on
January 10, 2022, within the 90-day period from the date of service on the district
attorney.
Defendant contends that, under the “prison mailbox drop rule,” his service on the
district attorney was completed when he deposited the demand into the prison mail
system. But the “prison mailbox drop rule,” or the prison-delivery rule, provides only
that a self-represented prisoner’s notice of appeal in a criminal case is deemed timely if,
within the relevant period, the prisoner properly submitted the notice to prison authorities
pursuant to the procedures established for prisoner mail. (Silverbrand v. County of Los
Angeles (2009) 46 Cal.4th 106, 110; In re Jordan (1992) 4 Cal.4th 116, 118-119.)
Section 1381 does not concern the filing of a notice of appeal, and specifies that the
90‑day period begins when the district attorney receives the demand.
II
Physical Restraints During Trial
On the second day of trial, the trial judge noticed for the first time defendant had
leg restraints at his ankles, but he did not believe the jury saw the restraints. The
correctional officer stated he had positioned himself between defendant and the jury so
the jury could not see that defendant was in restraints. Defendant declined a jury
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instruction on the physical restraints to avoid “bring[ing] too much attention” to the
restraints. The prosecutor later recalled the trial took place in a large courtroom and the
jury sat in the audience due to coronavirus disease 2019 (COVID-19) restrictions. No
restraint hearing was requested before the trial began. After the trial, defendant filed a
motion for a new trial based in part on the use of leg restraints at trial. The trial court
denied the motion.
“[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, fn. omitted.) But
“courtroom shackling, even if error, was 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.)
Here, the trial judge, based on his own observation, concluded it was unlikely that
the jury saw defendant’s leg restraints. Considering that the trial was held in a large
courtroom, the jury was seated in the audience to comply with COVID-19 restrictions,
and the correctional officer intentionally positioned himself in between defendant and the
jury so the jury could not see the leg restraints, we conclude the use of leg restraints on
defendant, even if error, was harmless.
III
Prosecutorial Misconduct
Defendant forfeited his claim for prosecutorial misconduct because he raised no
objection when the People sought permission to reopen the questioning of two witnesses.
(People v. Wharton (1991) 53 Cal.3d 522, 591 [a defendant’s failure to object to
prosecutorial misconduct forfeits the issue for appeal].) After reviewing the entire
record, including the trial court’s denial of defendant’s various motions, we conclude
there is no reversible error.
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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
EARL, J.
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