Opinion
William Alfred Jacobs (defendant) appeals from a judgment of conviction following a jury trial at which he was found guilty of attempting to sell heroin (Pen. Code, § 664; Health & Saf. Code, § 11352), a necessarily lesser included offense of selling heroin, the offense charged in the one count information.
*1138 We affirm the judgment.
Factual Statement
At trial the prosecution presented the following evidence:
On July 20, 1987, Leonardo Hernandez (Hernandez), a confidential informant for the City of Long Beach, met defendant near 127 West 14th Street, Long Beach, as part of a controlled drug buy. In response to Hernandez’s request to buy a quarter gram of heroin for $40, defendant said he would have to telephone his connection.
During the first phone call defendant asked if the connection could come to the area where defendant was to drop off the heroin. The other party, who sounded like a male Mexican, said he could not do so at that time and asked defendant and Hernandez to go to 19th Street and Long Beach Boulevard and call again.
After the two arrived at that location, defendant yelled across the street to a white male who then crossed over and spoke with defendant. Hernandez did not pay attention to the conversation.
Defendant then made a second phone call during which he said he was at that location and had the mоney.
About 10 minutes later, defendant made a third phone call in order to see what the delay was. The other party said the car had just arrived and would be there momentarily.
Within minutes of the last phone call, a car pulled up by the curb where defendant and Hernandez stood. Hernandez placed his hand with the money inside the car. The woman passenger told the male driver in Spanish that all $40 was there. The driver took the money and handed Hernandez a bindle, which contained .30 grams of heroin.
In his defense defendant gave the following testimony: He denied he sold heroin but admitted he had agreed to make a phone call to try tо acquire some for Hernandez, who claimed to be in withdrawal. Defendant further admitted to making the three phone calls. He denied, however, that the exchange of money for heroin was the result of such calls.
During the first phone call defendant made, Hernandez grabbed the phone. When he hung up, Hernandez told defendant they should go to *1139 either 19th or 20th Streets and Long Beach Boulevard. He did not tell defendant he had made a deal.
Upon arriving at 19th Street and Long Beach Boulevard defendant made a second call and said he wanted to forget the deal, because there might be a robbery attempt, that something was wrong. The other party on the phone said okay, that no deal had been made.
After a few minutes, defendant made a third phone call to a neighbor friend, Tashi Zoowana (Zoowana), asking for a ride. Zoowana arrived, parked across the street, and approached defendant. When defendant said he would leave as soon as he could get away from Hernandez, Zoowana returned to his car.
Defendant denied having ever seen the man or woman in the car which drove up to the curb where he and Hernandez were standing.
After the jury returned its guilty verdict, defendant moved for a new trial. In his declarаtion in support of the motion defense counsel made the following statements: On October 19, 1987, defendant, while in handcuffs, was taken down the hallway past prospective jurors into the public entry of the courtroom. “Because it was apparent that most, if not all, prospective jurors . . . had observed the dеfendant to be in custody, [defense counsel] was forced to voir dire at length on the point.” During trial, on October 20 and 21, defendant complained of the above practice of transporting him to the courtroom. Defense counsel did not move to change the practice, because he “was unaware of any possible alternate procedure. . . .” Also, “[r]ather than move for a mistrial [he] thought it in [defendant’s] best interests to see what verdict the jury would return, because [he] was greatly pleased with the jury composition when jury selection was completed.” The motion for a new trial was denied.
Issues Presented
Defendant аsserts three grounds for reversal of the judgment: (1) he was denied a fair trial, because the trial court failed to instruct the jury sua sponte that the physical restraints on defendant had no bearing on the determination of guilt; (2) defense counsel’s failure to object timely to the appearance of defendant in restraints amounted to incompetency of counsel; and (3) the prosecutor’s comments on defendant’s failure to call a witness constituted misconduct.
*1140 Discussion
I. Instruction Regarding Defendant's Restraints
Defendant asserts that absent a showing of necessity, a defendant cannot be subject to physical restraints in the courtroom in the jury’s presence.
(People
v.
Prado
(1977)
He claims that such instruction was necessary in this instance because on October 19, 1987, defendant was handcuffed when he was brought through the courthouse hallway where “most, if not all” prospective jurors were, and that on October 20 and 21, 1987, during trial, defendant was again brought handcuffed through that hallway where jurors might have seen him.
We have no quarrel with defendant’s recitation of law. (See also,
People
v.
Duran
(1976)
In
People
v.
Duran, supra,
On the other hand, our Supreme Court has not held that it is incumbent on the trial court to instruct the jury sua sponte that the appearance of a defendant in physical restraints hаs no bearing on the determination of guilt in the situation where prospective jurors or jurors may have viewed, or have viewed, defendant in physical restraints merely while he is being taken to or from the courtroom.
From our review of the applicable law we find no legal foundation nor necessity for such a rule, The customary practice of utilizing physical restraints while transporting a prisoner from place to place, e.g., from jail to courtroom and back, is a matter of common knowledge and generally acknowledged as acceptable for the protection of both the public and dеfendant. It has, in fact, been established that it is legally permissible to transport a prisoner to the courtroom in physical restraints. (See, e.g.,
People
v.
Duran, supra,
Accordingly, we hold that where one or more jurors or veniremen merely witnessed defendant being transported to or from the courtroom in visible restraints the trial court has no duty, sua sponte, to instruct the jury that the physical restrаints on defendant have no bearing on the determination of guilt.
On the other hand, if the defense had requested such an instruction, the trial court would be required to instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt.
As a general rule, a trial court is not required to instruct the jury not to be persuaded by feelings of passion or prejudice against a defendant since it is presumed that jurors are fair and intelligent persons, and thus need no special instruction on the obvious, basic principles of just conduct. (See, e.g.,
People
v.
Womble
(1945)
As noted by our Supreme Court in
People
v.
Duran, supra,
Mindful of the constitutional right of every accused to trial by a fair and impartial jury (U.S. Const., Amend. VI; Cal. Const., art. I, § 16), we therefore further hold that upon a showing that one or more jurors or veniremen observed defendant in physical restraints being transported to or from the courtroom, and upon request by the defense, the trial court must instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt. (See
People
v.
Cecil
(1982)
The failure of the court so to instruct the jury, however, would constitute reversible error only if it were “reasonably probable that a result more favorable to [defendant] would have been reached in the absence of such error.”
(People
v.
Watson
(1956)
From our review of the record we find no requirement for such an instruction here. The omission by defense counsel to request such an instruction was clearly the result of a tactical choice. Defense counsel conducted extensive voir dire of the prospective jurors on the issue of the impact on the jurors of viewing defendant in handcuffs. Although defense counsel opined that the jurors would be impacted by that sight, he elected not to move for a mistriаl, because he thought it was in defendant’s best interests to see what the jury’s verdict would be since defense counsel was “greatly pleased with the jury composition when jury selection was completed.”
*1143 II. Effectiveness of Counsel
Defendant contends that defense counsel was ineffective, apparently because of his failure tо object to the defendant being “brought into court [through] the public entrance in handcuffs, which meant that he was in handcuffs in full view of the jurors in the hallway or the area near the courtroom door.” He points out that he had complained to defense counsel about that practice during both days of trial, and that he was embarrassed by the practice.
In order to establish inadequacy of counsel the “[defendant] must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates”
(People
v.
Pope
(1979)
We agree that defense counsel’s failure to object timely to the use of physical restraints precludes review of that issue on appеal. (See, e.g.,
People
v.
Thompkins
(1987)
III. Prosecutor's Conduct
Defendant’s remaining claim of error concerns certain comments by the prosecutor in closing argument. In his argument defense counsel asserted that defendant’s testimony was truе by arguing that the fact that Hernandez testified that a man did cross the street to talk with defendant was *1144 corroboration of defendant’s testimony that his third phone call was to Zoowana and to ask for a ride.
In a mistaken belief that defense counsel was asserting that Zoowana’s crossing of the street corrobоrated defendant’s testimony the prosecutor argued, in sum: “the only way you can call that corroboration is if you call that friend to the witness stand and had him testify to that; and that wasn’t done in this case.”
Defense counsel objected. The trial court denied defense counsel’s request that the jury be admonished not to speculate why a witness was not called.
The prosecutor then continued by again arguing that there was no corroboration, because of the failure of the witness to testify. He further argued that such failure also led one to deduce “either [defendant], just recently made up that person ... or that person doesn’t exist; because if you were defending [defendant], if I were defending him, I would call that witness; and I know you would, too.”
Defense counsel objected on the ground that he did not know which witness the prosecutor was referring to. The court overruled the objection.
Prosecutorial misconduct implies the use of deсeptive or reprehensible methods to win over the jury or court. (See, e.g.,
People
v.
Haskett
(1982)
In any event, it is clear from the record that such prosecutorial comments, even if they were misconduct, would not require reversal since in the absence of such comments a result more favorable to defendant would not be reasonably probable.
(People
v.
Haskett, supra,
*1145 The judgment is affirmed.
Klein, P. J., and Croskey, J., concurred.
Decision