People v. Gutierrez

“[Defendant:] I want to wait for my attorney. He told me he was coming. I need some time. I need two days so I can get the attorney in case that he doesn’t show up, because I’m not going to go to court.

“[Defense counsel:] If you’re willing to come out and talk to the court and see what the judge tells you about that, I’m here to tell you that he has said no and he’s willing to proceed without you. fl[] If you want to come out and talk to the judge, I’m sure that gentleman will bring you right now and let you talk to the judge.

“[Defendant:] To talk about what?

“[Defense counsel:] Your demand, so you can hear in person that the judge says no, we’re resuming trial.

“[Defendant:] But then you’re going to leave me in there; you’re not going to bring me back in there.

“[Defense counsel:] You know, I’m going to make the decision for you. I’m done. I’m leaving you in here. I’m proceeding without you. I’m tired of dealing with this.”

Returning to the courtroom without defendant, defense counsel recounted his conversation to the trial judge outside the presence of the jury. The bailiff confirmed that defense counsel’s summary was “exactly the way I saw it and heard it as well.” The judge asked the bailiff if he was “satisfied also that [defendant] is freely and voluntarily and of his own will refusing to make an appearance in the courtroom.” The bailiff responded “yes.” Relying on the authority of People v. Parento (1991) 235 Cal.App.3d 1378 [ 1 Cal.Rptr.2d 444 ], the trial judge ruled that the trial would proceed in defendant’s absence. Defense counsel objected that “despite it being my client’s wishes, I believe it will have a severe, adverse—very severe, adverse impact on the jury”; counsel also lodged a continuing objection. Defense counsel did not waive defendant’s right to presence.

The trial judge admonished the jury not to consider or speculate about defendant’s absence: “It must not affect your verdict or be considered by you in the course of your deliberations.” At the start of the afternoon session, the bailiff spoke to defendant, who stated he did not wish to return to the courtroom. The record reflected that defendant told the bailiff that “he wanted to stay in the lockup.” At that time, the judge informed defense counsel that “[w]e’ll keep ordering him out and keep inquiring of him.” During defendant’s absence, defense counsel cross-examined victim Bustamante, and victim Sanchez and two police officers testified.

The jury found defendant guilty of second degree robbery of Sanchez, and attempted second degree robbery of Bustamante. Defendant appealed, arguing that, among other things, the trial court erred by concluding defendant voluntarily absented himself from trial without questioning defendant personally about his desire to be absent.

The Court of Appeal majority reversed the trial court’s judgment. It concluded the trial court denied defendant’s rights to confrontation and due process “[b]y failing to make any effort to obtain a waiver from” him. Relying on federal authority, the majority concluded that because defendant was in custody in the court’s lockup, he was “present” in court and did not “voluntarily absent” himself. The majority also determined the error prejudiced defendant because it was likely that defendant’s one-day absence from the courtroom influenced the jury’s attitude towards him. Also, defendant’s presence was critical to his defense because defendant could have assisted counsel during cross-examination of prosecution witnesses.

The dissenting justice, however, believed that defendant was trying to “manipulate the court” by refusing to leave the lockup to speak with the trial judge, and that defendant “voluntarily absented” himself. “By refusing to appear in the courtroom, [defendant] deliberately attempted to bring a halt to his trial and force the trial judge to start proceedings again with new counsel.” The dissenting justice disagreed with the majority that the trial judge should have sought, or made attempts to seek, a waiver from defendant personally. “Under these circumstances, the trial judge was not required to leave the bench, march into the lockup with the court reporter, interpreter and trial counsel and seek a waiver of presence from the defendant personally. The trial judge is not required to have his bailiff risk bodily injury by dragging or carrying an uncooperative defendant into the courtroom to discuss a waiver.”

We granted the People’s petition for review, limiting the issue to whether a custodial defendant who refuses to leave the court lockup to attend his trial

Discussion

“An appellate court applies the independent or de novo standard of review to a trial court’s exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court’s decision entails a measurement of the facts against the law.” (People v. Waidla (2000) 22 Cal.4th 690 , 741 [ 94 Cal.Rptr.2d 396 , 996 P.2d 46 ].)

A criminal defendant’s right to be present at trial is protected under both the federal and state Constitutions. (U.S. Const., 6th & 14th Amends.; United States v. Gagnon (1985) 470 U.S. 522 , 526 [ 105 S.Ct. 1482 , 1484, 84 L.Ed.2d 486 ]; Cal. Const., art. I, § 15; People v. Waidla, supra, 22 Cal.4th at p. 741.) “The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation], but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” (United States v. Gagnon, supra, 470 U.S. at p. 526 [105 S.Ct. at p. 1484].) Our state Constitution guarantees that “[t]he defendant in a criminal cause has the right ... to be personally present with counsel, and to be confronted with the witnesses against the defendant.” (Cal. Const., art. I, § 15.)

Sections 977 and 1043 implement the state constitutional protection. (People v. Douglas (1990) 50 Cal.3d 468 , 517 [ 268 Cal.Rptr. 126 , 788 P.2d 640 ], disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907 , 933, fn. 4 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ].) Section 977, subdivision (b)(1), provides: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. . . .” Section 1043, subdivision (a), states that “[e]xcept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.” The parties here do not dispute that defendant had a right to be present at trial when witnesses testified against him.

A defendant’s right to presence, however, is not absolute. The high court has stated that a defendant’s “privilege may be lost by consent or at times even by misconduct. [Citation.]” (Snyder v. Massachusetts (1934) 291 U.S. 97 , 106 [ 54 S.Ct. 330 , 332, 78 L.Ed. 674 , 90 A.L.R. 575 ]; see also Fed.

Defendant argues that under People v. Ruiz, supra, 92 Cal.App.4th 162 , and People v. Howard, supra, 47 Cal.App.4th 1526 , trial courts must personally confront a defendant to determine whether the defendant desires to be voluntarily absent from court proceedings. We disagree. In Ruiz, the defendant in open court expressed his wishes “to voluntarily absent himself from the courtroom, giving up the opportunity to look jurors and witnesses in the eye and to assist his attorney in cross-examining witnesses.” (Ruiz, supra, at pp. 164-165.) In Howard, the trial judge went to the defendant’s holding cell and advised the defendant that he had a right to be present during the trial to assist counsel and to hear evidence. (Howard, supra, at pp. 1535-1536.) However, neither case held that a defendant who never enters the courtroom to begin with must be dragged into it to discuss a waiver, or that the judge must move the proceedings into the lockup.

Indeed, forcing a trial judge to leave the bench each time a defendant did not want to leave the lockup would greatly “frustrat[e] the orderly processes” of court proceedings. (People v. Connolly, supra, 36 Cal.App.3d at p. 384.) It would only serve to further a defendant’s dilatory tactics. Instead, we have explained that a trial judge may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence. (People v. Medina (1995) 11 Cal.4th 694 , 739 [ 47 Cal.Rptr.2d 165 , 906 P.2d 2 ] [discussing § 1043, subd. (b)(1)].) “The court properly relied on jail personnel to relay the pertinent information [that the defendant would not agree to behave] to the court bailiff. No objection was made to this procedure and, in any event, we find it unobjectionable. Busy trial courts need not engage in idle acts.” (Ibid.)

Defendant also contends that People v. Lewis (1983) 144 Cal.App.3d 267 [ 192 Cal.Rptr. 257 ], requires that a defendant personally “confront[] the judge and voluntarily say[] he does not desire to participate any further in those proceedings.” (Id. at p. 279, fn. omitted.) We disagree. In that case, defendant Lewis threatened to be disruptive. (Id. at p. 271.) After the trial court informed the defendant that “ ‘if you will not participate and if you want to be disruptive in the courtroom, I will tell you at this time that we will take you and we will put you in the lockup,’ ” the defendant responded, “‘Put me in the lockup.’” (Id. at p. 271, in. 1.) The Court of Appeal concluded that “by words and conduct appellant waived his right to be present voluntarily and with full knowledge that the trial was continuing

In short, under section 1043, subdivision (b)(2), a trial court may continue a trial in a custodial defendant’s absence after the trial has commenced in the defendant’s presence—without first obtaining the defendant’s written or oral waiver of the right to presence—if other evidence indicates the defendant has chosen to be absent voluntarily. While a defendant’s express waiver in front of the judge might be the surest way of ascertaining the defendant’s choice, it is not the only way. A defendant’s “consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.” (U.S. v. Watkins (7th Cir. 1993) 983 F.2d 1413 , 1420, fn. omitted; see also People v. Medina, supra, 11 Cal.4th at p. 739.) In determining whether a custodial defendant who refuses to leave the lockup is “voluntarily absent” (§ 1043, subd. (b)(2)), a trial court should take reasonable steps to ensure that being absent from trial is the defendant’s choice.

As noted, defendant here, in the presence of a court reporter and a court bailiff, made unequivocal statements to defense counsel that he did not want to attend his trial: “I’m not going to go to court,” and “But then you’re going to leave me in there; you’re not going to bring me back in there.” The record also reflects that defendant, after the trial court denied his Marsden motion, sought to get new counsel. Defendant told defense counsel that “I want to wait for my attorney. He told me he was coming. I need some time. I need two days so I can get the attorney in case that he doesn’t show up . . . .” Defendant, however, did not seek a continuance to hire a new attorney, nor gave any indication until the middle of trial that he intended to hire a new attorney. It is clear that defendant refused to leave the lockup in hopes of improperly delaying trial to retain another attorney. Under these circumstances, we conclude that defendant chose to be “voluntarily absent” under section 1043, subdivision (b)(2), and sought to “intentionally frustrat[e] the orderly processes of his trial by voluntarily absenting himself.” (People v. Connolly, supra, 36 Cal.App.3d at p. 384.)

We are mindful of defense counsel’s following statements to defendant: “Personally, I don’t need your presence there. . . . [|] . . . [|] You know,

Relying on federal cases, the Court of Appeal majority here concluded that defendant did not “voluntarily absent” himself from trial. (See U.S. v. Gomez (10th Cir. 1995) 67 F.3d 1515 , 1528; U.S. v. Watkins, supra, 983 F.2d at pp. 1421-1422; Larson v. Tansy (10th Cir. 1990) 911 F.2d 392 , 395-397; U.S. v. Gordon (D.C. Cir. 1987) 829 F.2d 119 , 125-126 & fn. 7; Cross v. United States (D.C. Cir. 1963) 325 F.2d 629 , 631; see also State v. Clements (1988) 108 N.M. 13 [ 765 P.2d 1195 , 1200] [following Cross].) These cases, however, do not support the conclusion that a custodial defendant who expresses a clear desire to be “voluntarily absent” (§ 1043, subd. (b)(2)) from proceedings must confirm that desire through a written or oral waiver in open court or in the lockup.

In Cross v. United States, arguably the most analogous federal case, the defendant was “in the custody of the United States Marshal in a room adjacent to the courtroom.” (Cross v. United States, supra, 325 F.2d at p. 630.) After defense counsel advised the trial court that the defendant refused to return to the courtroom, the court proceeded in his absence based only on the statement from counsel. Reversing the trial court’s judgment, the federal Court of Appeals reasoned: “[W]here the defendant is available, ‘the serious and weighty responsibility’ of determining whether he wants to waive a constitutional right requires that he be brought before the court, advised of that right, and then permitted to make ‘an intelligent and competent waiver.’ This has been the uniform practice.” (Id. at p. 631, fn. omitted.)

Rejecting the federal government’s contention that the defendant “voluntarily absented” himself under rule 43 of the Federal Rules of Criminal

A defendant’s right to presence is “fundamental to our system of justice and guaranteed by our Constitution.” (People v. Lewis, supra, 144 Cal.App.3d at p. 279.) Thus, a trial court should not “summarily plung[e] ahead” with trial in a defendant’s absence. (People v. Vargas (1975) 53 Cal.App.3d 516 , 526 [ 126 Cal.Rptr. 88 ].) However, contrary to defendant’s suggestion, the circumstances of this case demonstrate that the trial court took reasonable steps to determine that defendant was “voluntarily absent” before continuing with trial in his absence. (§ 1043, subd. (b)(2).)

Because we find that the trial court did not err in concluding defendant was “voluntarily absent” (§ 1043, subd. (b)(2)), and properly continued with trial in his absence, we do not reach the question whether defendant’s absence was prejudicial

Conclusion

We reverse the Court of Appeal’s judgment and remand the matter for further proceedings consistent with this opinion.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., Brown, J., and Moreno, J., concurred.

Appellant’s petition for a rehearing was denied May 14, 2003.