* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FREDERICO GONZALEZ, Petitioner - Appellee,

v. CHERYL PLILER, Warden, Respondent - Appellant. No. 08-56909D.C. No. 2:01-cv-00300-FMCJTL

MEMORANDUM *

FREDERICO GONZALEZ, Petitioner - Appellant,

v. CHERYL PLILER, Warden, Respondent - Appellee. No. 08-56955D.C. No. 2:01-cv-00300-FMCJTL

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 

# FILED

SEP 15 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS** The Honorable Daniel M. Friedman, United States Circuit Judge for the Federal Circuit, sitting by designation. Page 2 of 9 Before: FRIEDMAN, ** D.W. NELSON, and REINHARDT, Circuit Judges. In a prior decision, we held that Fre derico 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 prej udicial. Following our decision, the state filed a petition for rehearing, in which it contended that Gonzalez had procedurally defaulted his stun belt claim. In respons e, we expanded our remand order to direct the district court to consider the procedur al 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 erro r was prejudicial. The court granted Gonzalez’s habeas petition. The state app eals. We affirm. Because we do so, we do not decide Gonzalez’s cross-appeal of th e district court’s denial of certificates of appealability on the issues of juror misconduct and cumulative error. I.Page 3 of 9 We first address the state’s argumen t that we are barred from reviewing Gonzalez’s stun belt claim because the stat e 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 th at the procedural rule on which the state court rested its decision is not “clear, consistently applied, and wellestablished.” 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 A ppeal reached the question of the belt’s constitutionality, and concluded that th e belt was constitutional — a conclusion that we subsequently held to be an unr easonable 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 re spect to harm, however, the court refused to consider whether the belt had interfe red with Gonzalez’s ability to communicate with his attorney, “impaired his thinki ng,” or “somehow abridged his defense,” because he had not argued at trial thatthe belt would have those effects.Page 4 of 9 The state now argues that we are pr ecluded from reviewing Gonzalez’s stun belt claim because the Court of Appeal’s holding of harmlessn ess is adequately supported on a state procedural ground, namely, California’s contemporaneous objection rule. We have recognized thatCalifornia’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 obj ection rule was app lied 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 tr ial 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 “sw itch[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 notPage 5 of 9 restrain the defendant’s movements. Id. at 353. On appeal, the defendant argued that it did, because it restrainedhim in a psychological sense. Id. at 354. Because he had not raised that theory below, the appellate court refuse d 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 particularconstitutional provision. Even if Garcia were similar to the present case, however, it in itself would not establish a rule that is “clear, consistently app lied, 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 claimPage 6 of 9 because at the time he raised his objecti on, 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 thatthere are no “compelling circumstances” and requests that the order requiring hi m to wear the belt be withdrawn. For the reasons set forth above, we conc lude that the state procedural bar applied here was not “ade quate,” and thus does not preclude us from reviewing Gonzalez’s claim. Melendez, 288 F.3d at 1126. II. The district court held that Gonzal ez 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 c onducted 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 s howed 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 “c ommunicat[ed] with persons in [his] immediate vicinity.” He did not tell Gon zalez that he could talk to his attorney. Gonzalez, his trial counsel, and four of th e trial jurors, all testified that GonzalezPage 7 of 9 never initiated conversation w ith 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 thatthe 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 obligatedto conduct a de novo evidentiary hearing had it rejected the factual findings underl ying 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 magi strate judge’s factual findings. That is what the district court did in this cas e: 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 wasPage 8 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 de fendant 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 G onzalez 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 hi s trial. Gonzalez subsequently wore a stun belt throughout his entire trial and, wh ile 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 prosecution1 The state contends that the law of th e 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 cas e, 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 ev identiary hearing showed Gonzalez’s stun belt to be an “extreme form[]” of restrain t in that he was told that he could be subject to a 50,000 volt shock if he communi cated 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 witness). Because Gonzalez was preven ted 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.