91 Cal.App.5th 1015
Cal. Ct. App.2023Background
- Defendant DeAnthony Govan was convicted after a jury trial of multiple counts involving forcible oral copulation, forcible rape, false imprisonment by violence, and attempted forcible rape against four victims; some testimony was read from a preliminary hearing for an unavailable witness.
- Trial and jury selection occurred during the COVID-19 pandemic; jury selection took place in an unsecured assembly room and the court ordered Govan restrained with a lap belt during voir dire.
- Shortly after the jury returned verdicts, Govan was quarantined in jail for COVID exposure; the court received the jury verdicts in his absence under Penal Code §1148 rather than delaying two weeks.
- At sentencing the court imposed multiple consecutive indeterminate one‑strike sentences (§667.61) and imposed (but stayed under former §654) upper terms on false imprisonment counts; presentence custody credit was computed by the court.
- On appeal the court addressed (1) use of restraints during jury selection, (2) receiving verdicts in defendant’s absence, (3) admission of an unavailable witness’s preliminary hearing testimony, (4) CALCRIM No. 315 certainty factor after People v. Lemcke, and (5) sentencing errors and retroactive application of statutory amendments to Penal Code §§654 and 1170(b), plus custody/credit issues.
Issues
| Issue | People’s Argument | Govan’s Argument | Held |
|---|---|---|---|
| 1) Restraints during jury selection | Security justified restraints in unsecured jury room due to pandemic and seriousness of charges | Trial court abused discretion by ordering restraint belt without individualized showing of present risk | Court: Restraint order was an abuse of discretion for lack of individualized findings but harmless because belt was not visible and did not impair defense |
| 2) Receiving verdicts in defendant’s absence (quarantine) | In‑person presence would have required 2‑week delay risking juror loss or illness; §1148 permits verdict reception in absence when reasonable diligence fails | Absence was not defendant’s fault; reading verdicts was an essential stage and violated statutory/constitutional rights | Court: No error — §1148 interest‑of‑justice finding proper; absence did not prejudice ability to defend |
| 3) Admitting preliminary hearing testimony for unavailable witness (Soraya) | Prosecution exercised reasonable diligence to locate witness and she became unavailable; former testimony admissible | Prosecution failed to exercise due diligence given witness’s lifestyle and mobility | Court: Prosecution used reasonable diligence; trial court correctly found Soraya unavailable and admitted preliminary hearing testimony |
| 4) CALCRIM No. 315 certainty factor after Lemcke | Inclusion of certainty factor was permissible; any objection forfeited | Inclusion of certainty factor violated Lemcke guidance and defendant's due process because no expert rebutted confidence/accuracy link | Court: No reversible error — Lemcke guidance did not render the instruction unconstitutional here; any state‑law error was harmless (victim did not assert certainty) |
| 5) Applicability of amended §654 (Assembly Bill 518) to one‑strike sentences | §667.61(h) (“nor shall execution or imposition of sentence be suspended”) precludes staying one‑strike sentences under §654 | Ameliorative §654 applies retroactively; §667.61(h) prohibits probation but does not bar a §654 stay | Court: §654 amendments apply retroactively; §667.61(h) does not preclude staying a sentence under §654; remand for resentencing under amended §654 warranted |
| 6) Resentencing under amended §1170(b) (SB567) and custody/conduct credits | Some aggravating facts cited by judge at sentencing justify upper terms; one‑strike sentencing affects credits | SB567 and related reforms are ameliorative and retroactive; court imposed upper terms without jury findings; presentence custody credit miscalculated; one‑strike offenders not entitled to conduct credit | Court: SB567 applies retroactively; sentencing violated Sixth Amendment/statutory §1170(b) so vacated and remanded for full resentencing; presentence custody credit recalculation required (1,020 days), but no conduct credit available for one‑strike offenders |
Key Cases Cited
- People v. Poore, 13 Cal.5th 266 (2022) (restraints and courtroom security principles; harmless‑error analysis when restraints not visible)
- People v. Bracamontes, 12 Cal.5th 977 (2022) (restraints require individualized showing of manifest need)
- People v. Young, 7 Cal.5th 905 (2019) (limits on visible shackling without individualized justification)
- Deck v. Missouri, 544 U.S. 622 (2005) (visible shackling requires essential justification; Chapman standard if visible)
- People v. Lewis & Oliver, 39 Cal.4th 970 (2006) (verdict read in defendant’s absence where presence impossible; §1148 interest‑of‑justice analysis)
- People v. Lemcke, 11 Cal.5th 644 (2021) (advisory guidance on omitting witness‑certainty factor from CALCRIM No. 315)
- People v. Wright, 12 Cal.5th 419 (2021) (post‑Lemcke due process analysis of certainty factor instruction)
- In re Estrada, 63 Cal.2d 740 (1965) (ameliorative statutory changes apply retroactively to nonfinal judgments)
- People v. Sanchez, 63 Cal.4th 411 (2016) (due diligence standard for proving witness unavailability)
- People v. Louis, 42 Cal.3d 969 (1986) (diligence required to prevent witness absence; distinguishable facts)
- People v. Caparaz, 80 Cal.App.5th 669 (2022) (held §667.61(h) bars stays — court here disagreed)
- People v. Zabelle, 80 Cal.App.5th 1098 (2022) (analysis and harmless‑error framework for resentencing under amended §1170(b))
- People v. Valenzuela, 7 Cal.5th 415 (2019) (full‑resentencing rule on remand)