Filed 5/27/15 P. v. Hidalgo CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ELBERT ERNESTO HIDALGO, 

 Defendant and Appellant. 

 B252675 

 (Los Angeles County 

 Super. Ct. No. LA067967) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, 

Susan M. Speer, Judge. Affirmed as Modified. 

 Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline 

and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent. 
2

 A jury convicted defendant Elbert Ernesto Hidalgo of first degree residential 

burglary (Pen. Code, § 459)1

 and possession of a smoking device (Health & Saf. 

Code, § 11364, subd. (a)). In a bifurcated proceeding, the trial court found that 

defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 

1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), 

and two prior prison terms (§ 667.5, subd. (b)). The trial court struck one of 

defendant’s prior strikes, and sentenced him to a term of 22 years in state prison. 

He appeals from the judgment of conviction, contending that the trial court erred in 

(1) ordering him shackled during trial, and (2) staying rather than striking his prior 

prison terms in sentencing. We modify the judgment to strike the prior prison 

terms and otherwise affirm. 

BACKGROUND 

 Because the evidence supporting defendant’s convictions is not relevant to 

the issues on appeal, we only briefly summarize it. Defendant lived in an 

apartment building a few hundred feet away from the apartment on Victory 

Boulevard in which Graciela Lara lived with her one-year-old daughter. On May 

19, 2011, Lara heard a knock on her door. She did not answer. After she heard 

two more knocks, she went to the door, but no one was there. As she walked back 

to the bedroom, she heard the window opening. She opened the curtains and 

observed defendant with his hands on the open window and window sill. The 

window screen had been removed. Lara screamed, closed the window, and called 

911. Defendant fled. Lara participated in the drawing of a composite sketch of the 

burglar, and on May 26, 2011, identified defendant’s photograph in a photo lineup. 

 

1

 Undesignated section references are to the Penal Code. 
3

In a search of defendant’s apartment, Los Angeles Police Officer Christopher 

Hookstra recovered a glass pipe containing methamphetamine residue. After his 

arrest, defendant told Officer Hookstra that he passed by Lara’s apartment and 

looked in through the bedroom window. Had he seen a small item nearby, he 

would have taken it. 

 The prosecutor read into the record the following incriminating statements 

defendant had made in court in September 2011. He said, in part: “I knocked on 

the door. I made every intent to make sure nobody was inside. The only thing I 

managed to do was take off the screen. . . . I didn’t open the window. I didn’t put 

no hands inside of the place.” He also said, “I knocked on the door. I made an 

attempt to make sure nobody was there. Three minutes, not one minute. Not two, 

three knocks. Three minutes.” 

DISCUSSION 

I. Physical Restraints 

 Defendant contends that the trial court erred in ordering that he be restrained 

by a “stealth belt” during his jury trial. We disagree. 

 “‘[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.’ [Citation.] But we will not overturn a trial court’s 

decision to restrain a defendant absent ‘a showing of a manifest abuse of 

discretion.’ [Citation.] We have said that a ‘“‘“[m]anifest need” arises only’”’ 

when the defendant has been unruly, has ‘“‘announced [an] intention to escape,’”’ 

or when the evidence shows the defendant would likely ‘“‘“disrupt the judicial 

process”’”’ if left unrestrained. [Citation.] ‘“‘“The imposition of physical 

restraints in the absence of a record showing of violence or a threat of violence or 
4

other nonconforming conduct will be deemed to constitute an abuse of 

discretion.”’”’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1050 

(Wallace).) 

 Here, on June 11, 2013, before jury selection began, the court made a 

lengthy record of the reasons why defendant should be physically restrained: 

 “The Court has received a number of disciplinary reports from the L.A. 

County Sheriff’s Department. They are requesting a stealth belt be applied. 

 “We have a discipline report from July 10, 2011, where the defendant 

assaulted Deputies Stephenson and Partida. 

 “Discipline report from August 19, 2011, where the defendant attacked and 

assaulted Deputy Campa. . . . 

 “Discipline report from July 28, 2011, where the defendant verbally 

assaulted two deputies. 

 “Discipline report from March 27, 2012, where the defendant refused to 

obey orders and created an operational disturbance. 

 “Discipline report from October 8, 2012, the defendant was a K-10. He 

allegedly got into a fight, jumped on one of the deputies. 

 “Incident report from 2/27/2013, defendant refused to obey orders, created 

false medical emergency. 

 “The defendant has – the Court is privy personally – the defendant has made 

death threats against prior counsel. 

 “He’s been disruptive in the courtroom. 

 “Has gone out 1368 partially due to his failure to cooperate and to act in an 

orderly manner in the courtroom.[2]

 

2

 In August 2012, the court declared a doubt as to defendant’s competence to stand 

trial. On February 1, 2013, the date set for his competency hearing, defendant refused to 
5

 “He has refused to come to court on a number of occasions. The court has 

had to issue extraction orders. 

 “He’s antagonistic to his attorney, as indicated by the multiple Marsden

hearings, and refusing to speak to counsel.[3]

 “The court feels there is an manifest need for the least restrictive restraint, 

which would be a stealth belt. It would be invisible to the jurors. He’d be waist 

chained to the chair. Only his hands would be completely free.” 

 Defense counsel did not formally oppose restraints, stating only, “Submit it, 

Your Honor.” The court then ruled that “the deputies have permission to place a 

stealth belt on the defendant during all proceedings in open court.” 

 On appeal, defendant contends that the court’s recitation of the record was 

“grossly distorted or simply incorrect.” Defendant quarrels with the 

characterization of defendant’s competency proceedings as having involved 

disruptive behavior, and asserts that the incidents of alleged jail misconduct were 

remote in time or minor in nature. Defendant minimizes his refusal to come to 

court during his competency proceedings and the resultant extraction orders as 

involving conduct that did not occur in the courtroom. Similarly, he characterizes 

 

come to court and the court issued an extraction order. The hearing was continued to 

February 4, 2013, at which defendant waived his right to jury on his competency. At the 

next scheduled date for the competency hearing, February 22, 2013, defendant again 

refused to come to court and the court issued an extraction order. He finally appeared on 

March 8, 2013, and the competency hearing was continued again. On the next court date, 

defendant was a miss-out and the court issued its third extraction order. Defendant 

appeared on March 29, 2013, and the court found him competent to stand trial. At the 

next scheduled pretrial conference on May 2, 2013, defendant did not appear, and the 

court issued its fourth extraction order. Trial commenced with jury selection on June 11, 

2013. 

3 Marsden hearings were held on December 2, 2011, July 18, 2012, and May 8, 

2013. 
6

his dissatisfaction with his trial attorney and his death threat against his prior 

attorney as not amounting to disruptive behavior in court. 

 Defendant does not dispute that all of the matters referred to by the court 

(with the exception of defendant being disruptive in court in connection with his 

competency proceedings) occurred. Moreover, his minimizing characterizations of 

his behavior do not demonstrate that the court’s view of his conduct, taken as a 

whole, was unreasonable, or that the decision to impose the stealth belt – the least 

restrictive restraint -- was an abuse of discretion. In short, defendant had twice 

physically assaulted deputies while in custody, had been disruptive in custody on 

three other occasions (including a fight in which he jumped on a deputy), had 

threatened the life of one attorney, in multiple Marsden hearings had demonstrated 

antagonism with his subsequent attorney, and had refused to come to court on four 

occasions resulting in the issuance of orders to forcibly extract him. On these 

facts, the court was not unreasonable in deeming such conduct to demonstrate a 

manifest need for physical restraints. Indeed, similar conduct has repeatedly been 

found sufficient to support the imposition of physical restraints. (Wallace, supra, 

44 Cal.4th at p. 1050 [evidence sufficient to support restraints where “the record 

shows defendant had been cited for many rules violations while awaiting trial in 

the county jail, which included five jailhouse fights and possession of illegal 

razors”]; People v. Combs (2004) 34 Cal.4th 821, 837-838 [restraints justified 

where psychologist reported that defendant was likely to be disruptive, and 

prosecutor represented that defendant had possessed two shanks in jail and had 

threatened jail deputies]; People v. Hawkins (1995) 10 Cal.4th 920, 944 

[“defendant’s three reported fistfights in prison, together with his extensive 

criminal history, are sufficient to support the trial court’s order to shackle 

defendant, inasmuch as they demonstrate instances of ‘violence or nonconforming 
7

conduct’ while in custody”], disapproved on another point in People v. Lasko 

(2000) 23 Cal. 4th 101, 110.) We conclude that the trial court did not abuse its 

discretion. 

 In any event, even assuming that the trial court abused its discretion, 

“defendant suffered no possible prejudice. Determining whether or not the 

erroneous imposition of restraints on a defendant was prejudicial requires us to 

consider the ‘possible prejudice in the minds of the jurors, the affront to human 

dignity, the disrespect for the entire judicial system which is incident to 

unjustifiable use of physical restraints, as well as the effect such restraints have 

upon a defendant’s decision to take the stand.’ [Citation.] The first and last of 

these considerations are the most significant.” (Wallace, supra, 44 Cal.4th at pp. 

1050-1051.) 

 The court described the stealth belt that was used: “It would be invisible to 

the jurors. He’d be waist chained to the chair. Only his hands would be 

completely free.” Defendant points to nothing in the record to suggest that the jury 

was aware of the restraints, or that the restraints in any way interfered with his 

ability to participate in the trial. He speculates that the restraints might have 

somehow increased his paranoia and his antagonism with his attorney, thereby 

interfering with his ability to decide whether to testify. However, nothing in the 

record supports this assertion. Defendant points to his lengthy colloquy with the 

court and defense counsel concerning whether he should testify. However, the 

record shows that defendant’s dilemma had nothing to do with his restraints. It had 

to do with his attorney’s advice that he not testify because he would be impeached 

with his prior felony convictions, and defendant’s insistence that his attorney 

present a theory under which the police conspired to plant evidence (a theory that 

the court noted was unsupported by even “a scintilla of proof”). Ultimately, 
8

defendant formally waived his right to testify (“I will not be testifying on my 

behalf at this point”), and the presence of restraints had nothing to do with his 

decision. In sum, defendant suffered no possible prejudice from the restraints. 

(Wallace, supra, 44 Cal.4th at pp. 1050-1051.) 

II. Prior Prison Terms 

 Defendant contends, and respondent agrees, that the trial court erred in 

staying rather than striking the one-year enhancements for two prior prison terms 

(§ 667.5, subd. (b)), because those prison terms related to prior convictions under 

section 667, subdivision (a)(1) for which he was sentenced to five years each. In 

that situation, only the greater punishment may be imposed. (People v. Jones 

(1993) 5 Cal.4th 1142, 1149, 1153.) Thus, rather than being stayed, the one-year 

enhancements under section 667.5, subdivision (b) must be stricken. 
9

DISPOSITION 

 The judgment is modified to reflect that the enhancements for the two 

prior prison terms under section 667.5, subdivision (b) are stricken. The clerk of 

the superior court is directed to prepare a corrected abstract of judgment and 

forward it to the Department of Corrections and Rehabilitation. In all other 

respects, the judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 WILLHITE, J. 

 We concur: 

 EPSTEIN, P. J. 

 COLLINS, J.