IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 4/2 E036353
RYAN ESTEBAN CONCEPCION,
Defendant and Appellant.
Super. Ct. No. SWF004991
Under Penal Code section 1043, subdivision (b)(2),1 a noncapital felony
trial may continue in a defendant’s absence, if the defendant was present when
trial began, then later voluntarily absents himself.
Defendant’s jury had been sworn, but on the morning of the first day
evidence was to be taken, he escaped before court convened. Several hours later
he was apprehended in a nearby community and the court was informed he could
be returned to court the following morning. That afternoon the trial proceeded in
A divided Court of Appeal reversed, reasoning that “[defendant’s] absence
ceased to be voluntary once he was returned to custody.”
Statutory references are to the Penal Code unless otherwise indicated.
To the contrary, we hold that an escapee’s voluntary absence includes the
time reasonably required to return him to court after apprehension.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with offenses arising from two separate incidents.
In the Lopez case, it was alleged that he carjacked a vehicle belonging to Hector
Lopez, demanding his car key at gunpoint. Soon after Lopez complied, police saw
defendant driving Lopez’s car. A high-speed chase ended when defendant crashed
the car into a tree. A gun was recovered from the car, and Lopez identified
defendant at the scene. Defendant was charged with carjacking, use of a firearm,
possession of a firearm by a felon, and flight from a police officer. 2
In the Hall case, it was alleged that defendant and a companion went to the
home of Lettie Hall, an elderly woman who had offered a gun for sale. After they
were admitted, they used a ruse to leave the home with the gun. Defendant was
charged with burglary and grand theft. 3
Defendant was present when his trial on all charges began with jury
selection4 on Wednesday, February 11, 2004. At the end of the session the jury
was sworn and the case was continued to resume with opening statements and
testimony on February 17. The morning of the 17th did not unfold as had been
expected. That morning the courthouse was “locked down” because some
prisoners had escaped. It was reported that defendant was one of those at large.
Sections 215, subdivision (a) and 12022.53, subdivision (b), 12021;
Vehicle Code section 2800.2.
Sections 459, 487, subdivision (d)(2).
For the purposes of section 1043, a jury trial begins with jury selection.
(People v. Granderson (1998) 67 Cal.App.4th 703, 709 (Granderson).) Defendant
does not contend otherwise.
The trial court faced a dilemma, which it approached methodically. It
spoke to the jury panel as a group and informed them that defendant would not be
present. It admonished them that they could not speculate about the reason for his
absence. It inquired of each juror individually what he or she had experienced in
terms of the lockdown. It asked about their reactions to that event and defendant’s
absence. It secured an assurance from each that they would not let those
circumstances affect their performance as jurors.
Defense counsel’s motion for a continuance or a mistrial was denied. The
court found that the jurors were able to follow the court’s instructions fairly and
impartially, that defendant had voluntarily absented himself after the trial had
begun, and that it was appropriate to proceed without him under section 1043.
The court recessed for lunch, with opening statements to begin thereafter.
After lunch and before opening statements, the court was informed that
defendant had been apprehended and was in custody in a community some 20
miles away. The sergeant responsible for transporting prisoners informed the
court that defendant could not be brought back for trial until the following day.
The court elected to proceed. Opening statements were given and all three
prosecution witnesses in the Lopez carjacking case completed their direct and
cross-examination. The court recessed for the day, and defendant was present the
The district attorney presented two witnesses relating to the Hall gun theft
and burglary allegations. The court also allowed, over defense objection, the
testimony of two officers concerning defendant’s escape and his return to the
detention facility at 7:00 p.m., dressed in civilian clothes. Before the officers
testified, counsel was given the opportunity to interview them. The jury was given
a modified version of CALJIC No. 2.52, as follows: “The escape of a person from
custody after the commission of a crime, or after he is accused of a crime, is not
sufficient in itself to establish his guilt, but is a fact which, if proved, may be
considered by you in the light of all other proved facts in deciding whether a
defendant is guilty or not guilty. The weight to which this circumstance is entitled
is a matter for you to decide.” Defendant does not contest the accuracy of that
instruction. He called no witnesses and did not testify.
In the Lopez case, the jury convicted defendant of the three offenses and
found true the firearm-use allegation. In the Hall matter, it convicted him of grand
theft, but, notably, found him not guilty of burglary. Defendant waived his right to
a jury trial on his prior conviction allegations. The court found that he had been
convicted of assault with a deadly weapon, a serious felony and a strike.5 He was
sentenced to 27 years in prison.
Over the dissent of Presiding Justice Ramirez, the Court of Appeal reversed
the judgment. It reasoned that once defendant was taken back into custody, “he
was again subject to the control of the state. After his rearrest, therefore, his
absence from his trial was involuntary, regardless of the initial voluntariness of his
failure to appear in court.” The Court of Appeal reversed the entire judgment. It
did not explain why it believed the asserted error in trying the carjacking charges
in absentia infected the conviction for the firearm theft tried in defendant’s
We reverse the judgment of the Court of Appeal.
A criminal defendant’s right to be personally present at trial is guaranteed
under the federal Constitution by the confrontation clause of the Sixth Amendment
and the due process clause of the Fourteenth Amendment. It is also required by
Section 667, subdivisions (a), (c), and (e); section 1170.12, subdivision
section 15 of article I of the California Constitution and by sections 977 and 1043.
(People v. Cole (2004) 33 Cal.4th 1158, 1230; People v. Waidla (2000) 22 Cal.4th
A defendant, however, does not have a right to be present at every hearing
held in the course of a trial. (People v. Hines (1997) 15 Cal.4th 997, 1039; People
v. Price (1991) 1 Cal.4th 324, 407.) A defendant’s right to be present depends on
two conditions: (1) the proceeding is critical to the outcome of the case, and (2)
the defendant’s presence would contribute to the fairness of the proceeding.
(Kentucky v. Stincer (1987) 482 U.S. 730, 745; People v. Perry (2006) 38 Cal.4th
302, 312 (Perry).)6 A defendant clearly has a right to be present when witnesses
testify at trial. (United States v. Gagnon (1985) 470 U.S. 522, 526; People v.
Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez).)
The right to be present may be waived, however. (People v. Young (2005)
34 Cal.4th 1149, 1213; People v. Price, supra, 1 Cal.4th at 405.) Waiver may be
express or implied. (Gutierrez, supra, 29 Cal.4th at p. 1206.) Cases finding
implied waivers have often involved disruptive behavior. (See, e.g., Illinois v.
Allen (1970) 397 U.S. 337, 343-344; People v. Welch (1999) 20 Cal.4th 701, 773
(Welch).) A waiver may also be implied by escape during trial (Golden v.
Thus a defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the outcome of the case,
because the defendant’s presence would not contribute to the fairness of the
proceeding. (Perry, supra, 38 Cal.4th at p. 312.) Examples include the exclusion
of a defendant from a conference regarding the competency of child witnesses
(Kentucky v. Stincer, supra, 482 U.S. 730), whether to remove a juror (Rushen v.
Spain (1983) 464 U.S. 114), and settling on jury instructions (People v. Morris
(1991) 53 Cal.3d 152, 210). There is no error in excluding a defendant from
routine procedural discussions on matters that do not affect the outcome of the
trial, such as when to resume proceedings after a recess. (See, e.g., People v. Hines
(1997) 15 Cal.4th 997, 1039–1040.)
Newsome (1985) 755 F.2d 1478, 1481) or failure to return to trial while on bail
(Taylor v. United States (1973) 414 U.S. 17, 20). “ ‘Neither in criminal nor in
civil cases will the law allow a person to take advantage of his own wrong. And
yet this would be precisely what it would do if it permitted an escape from prison,
or an absconding from the jurisdiction while at large on bail, during the pendency
of a trial before a jury, to operate as a shield.’ ” (Diaz v. United States (1912)
223 U.S. 442, 458, quoting Falk v. United States (D.C. Cr. 1899) 15 App. D.C.
We reject defendant’s claim that this line of authority was impliedly
overruled by Giles v. California (2008) __ U.S. __ [128 S.Ct. 2678] (Giles).
Giles is inapposite. An appellate decision is authority only for the points
actually involved and decided. (See, e.g., People v. Evans (2008) 44 Cal.4th 590,
599.) Giles did not remotely address the question whether a defendant impliedly
waives his right of presence by voluntarily absenting himself from trial.
Giles involved an application of the hearsay rule and how the principle of
forfeiture by wrongdoing mentioned in Crawford v. Washington (2004) 541 U.S.
36 would be interpreted. The question in Giles was whether that equitable
doctrine applied where the defendant was on trial for murder and the alleged
wrongdoing making the witness unavailable was the murder of that witness.
(Giles, supra, __ U.S. at p. __ [128 S.Ct. at pp. 2681-2682.)
People v. Giles (2007) 40 Cal.4th 833, this court concluded that the
doctrine of forfeiture by wrongdoing did apply under those circumstances. On
certiorari, the United States Supreme Court disagreed. It concluded that at
common law “unconfronted testimony would not be admitted without a showing
that the defendant intended to prevent a witness from testifying. In cases where
the evidence suggested that the defendant had caused a person to be absent, but
had not done so to prevent the person from testifying—as in the typical murder
case involving accusatorial statements by the victim—the testimony was excluded
unless it was confronted or fell within the dying-declaration exception.” (Giles,
supra, __ U.S. at p. __ [128 S.Ct. at p. 2684].) The court added that the rule
propounded by this court was not recognized at common law and not established
in American jurisprudence. (Id. at p. __ [128 S.Ct. at p. 2687].)
By contrast, as noted in the text, the doctrine that a defendant impliedly
waives the right of presence by voluntarily absenting himself from trial has been
well established in the jurisprudence of the high court for almost a century.
Section 1043, subdivision (b)(2), permits a court in a noncapital felony case
to proceed with trial in a defendant’s absence, if the defendant is present when the
trial begins, but later voluntarily absents himself.8
“ ‘Unquestionably section 1043, subdivision (b)(2), was designed to
prevent the defendant from intentionally frustrating the orderly processes of his
trial by voluntarily absenting himself.’ ([People v. Connolly (1973) 36
Cal.App.3d 379, 384 (Connolly)].)” (Gutierrez, supra, 29 Cal.4th at pp. 1204-
1205.) It provides the trial court with clear guidance and direct authority to ensure
the orderly process of trial when a defendant is absent voluntarily.
Delay is always disruptive to some degree. The disruptions that delay may
entail are summarized in Granderson, supra, 67 Cal.App.4th 703. “By the time
the oath is administered to the jurors selected in a criminal case, significant
resources (both fiscal and human) have been tapped. A courtroom and its
personnel have been set aside for the trial, precluding their use for the trial of any
other case. Prospective jurors have been summoned, at great cost and
inconvenience to many of them. The prosecutor and defense counsel have
arranged their schedules accordingly and may have had to continue other cases
they are handling. Subpoenaed witnesses have taken the steps necessary to ensure
that they are available to testify. The court and counsel may have invested time,
energy, and resources to prepare for and address motions in limine. During voir
dire, prospective jurors have been subjected to personal, probing questions. And if
another matter had to be reset because the criminal trial has made the courtroom
Section 1043, subdivision (b) provides: “The absence of the defendant in a
felony case after the trial has commenced in his presence shall not prevent
continuing the trial to, and including, the return of the verdict in any of the
following cases: [¶] . . . [¶] (2) Any prosecution for an offense which is not
punishable by death in which the defendant is voluntarily absent.”
and its personnel unavailable to try the other case, the administration of justice has
been affected, and other parties have been inconvenienced, often at great personal
expense.” (Id. at p. 708.)
Here, the district attorney raised another concern. Civilian witnesses in the
Lopez case were fearful about testifying against defendant who had stolen their car
at gunpoint. His escape made them even more fearful. Nevertheless, they were
present and prepared to give evidence. Delaying the trial would have done them a
The Court of Appeal’s rigid rule that an escapee’s absence ceases to be
voluntary the moment he is apprehended would blind the courts to the totality of
the circumstances, which may vary widely. A defendant might not be
apprehended in a nearby community, but in another state or country. A rule
requiring that his trial not proceed until he was returned, regardless of reasonable
delay, would be unworkable and would surely “frustrat[e] the orderly processes of
his trial.” (Connolly, supra, 36 Cal.App.3d at p. 384.) It would ignore the fact
that the defendant’s absence was caused in the first instance by his own
misconduct. Defendant cannot reasonably insist that the system should have
reacted instantaneously to accommodate him once his escape plans went awry.
That he found himself detained in another location was, at that point, a
circumstance of his own creation. A rule that holds an escapee is voluntarily
absent from the time he absconds until he can reasonably be returned to court
satisfies both constitutional and statutory requirements.
The role of an appellate court in reviewing a decision to proceed with trial
in a defendant’s absence is a limited one. Here, the scope of review is restricted to
whether, under the totality of the circumstances, the trial court’s determination of
two factual questions was supported by substantial evidence. (1) Was defendant
voluntarily absent when court convened that morning? (2) Once defendant was
recaptured, was it reasonable to take an afternoon to return him to court? The trial
court answered both of these questions in the affirmative. Its determinations were
supported by substantial evidence.
The trial court’s determination that defendant was voluntarily absent that
morning was undisputed. It was his own counsel who first informed the court that
he had reportedly escaped. Counsel’s information was later confirmed by the
sergeant responsible for transporting prisoners to court.
We reject defendant’s contention that the trial court had a sua sponte duty
to reconsider its ruling once he was recaptured. It was up to defendant to move for
reconsideration, which he failed to do. Even now he has failed to identify any new
information that would have tended to undermine the trial court’s determination of
Defendant’s reliance on Connolly, supra, 36 Cal.App.3d 379, is misplaced.
Connolly was on bail. When he failed to appear for the second day of trial, the
court conducted a hearing into whether his absence was voluntary and determined
that it was. The trial continued in Connolly’s absence and he was convicted.
Subsequently, he moved for a new trial. He testified about his activities on the
day of his absence in an attempt to show that it had not been voluntary. The
motion was denied and he was sentenced. The Court of Appeal affirmed.
Defendant contends that “Connolly contemplates a two-step process with
an initial preliminary ruling on ‘voluntary absence’ and a more definitive ruling
when the facts become clearer.” Defendant relies on the following language in
Connolly. “A crucial question must always be, ‘Why is the defendant absent?’
This question can rarely be answered at the time the court must determine whether
the trial should proceed. Consequently, in reviewing a challenge to the
continuation of a trial pursuant to Penal Code section 1043, subdivision (b)(2), it
must be recognized that the court’s initial determination is not conclusive in that,
upon the subsequent appearance of the defendant, additional information may be
presented which either affirms the initial decision of the court or demands that
defendant be given a new trial. It is the totality of the record that must be
reviewed in determining whether the absence was voluntary.” (Connolly, supra,
36 Cal.App.3d at pp. 384-385.)
Unlike Connolly, defendant did not move for reconsideration of the
determination of voluntary absence, and he did not seek to bring to the trial court’s
attention any new evidence that purportedly undermined that determination. He
does not even now contest that his absence was voluntary.
Turning to the trial court’s second factual determination, defendant now
claims that it was “patently absurd” of the sergeant to say that defendant could not
be returned to the court that afternoon. The argument fails. Because of
defendant’s escape, a heightened degree of security was obviously required in
transporting him. The sheriff’s office was dealing with an emergency situation
caused by the escape of several prisoners. There is nothing in the record to
support the conclusion that a delay until the next morning was unreasonable.
Defendant also contends that “[b]ecause appellant’s escape did not occur in
the middle of the trial, any state interest in holding a trial In Absentia was either
substantially diminished or nonexistent.” Again, the argument fails. First,
jeopardy attached when the jury was sworn. (Crist v. Bretz (1978) 437 U.S. 28,
38; People v. Fields (1996) 13 Cal.4th 289, 299.) Further, his claim overlooks the
disruptions outlined in Granderson, supra, 67 Cal.App.4th 703, and the additional
impact on the understandably fearful witnesses here.
The judgment of the Court of Appeal is reversed.
GEORGE, C. J.
CONCURRING OPINION BY WERDEGAR, J.
I agree with the majority that the period of a defendant’s voluntary absence
from trial precipitated by the defendant’s escape from custody includes the time it
reasonably takes to return the defendant to court after he or she is again in custody.
I also agree a trial court’s factual determination that a delay in returning a
defendant to court was reasonable must be upheld if supported by substantial
evidence. But here the trial court made no such factual determination, simply
telling the parties it had been informed defendant could not be brought back to
court until the day after his recapture. That statement is not a factual
determination, and as it did not follow an evidentiary hearing it certainly is not a
factual determination reviewable for substantial evidence.
Nonetheless, I believe the judgment must be affirmed because defendant
never argued to the trial court that the authorities unreasonably delayed his return.
Under the circumstances, defendant’s failure to make that argument implied he
agreed the delay was reasonable, and the court therefore had no obligation to
consider the matter further. People v. Connolly (1973) 36 Cal.App.3d 379, which
defendant cites in arguing that the trial court had a sua sponte duty to consider
whether his absence continued to be voluntary after he was returned to custody, is
distinguishable. In Connolly, the court initially determined the defendant’s
absence was voluntary, but reconsidered the question after the defendant raised it
in a motion for new trial. (Id. at p. 386.) Defendant here did not seek
reconsideration of the trial court’s ruling that his absence during the second
morning of trial was voluntary. Nor did he raise in the trial court the new question
whether what had been a voluntary absence became involuntary as a result of an
unreasonable delay in transporting him to court after his return to custody.
I also wish to avert any misconception that might flow from the majority’s
discussion of People v. Granderson (1998) 67 Cal.App.4th 703, cited for the
unremarkable conclusion that delays in the proceedings are disruptive. (Maj. opn.,
ante, at pp. 7-8.) Granderson concerned the point at which trial commences for
purposes of Penal Code section 1043, subdivision (b)(2), conferring discretion to
proceed in the defendant’s voluntary absence “after the trial has commenced.” It
was found there that the resources, time and energy expended by court and counsel
and the inconvenience to the jurors summoned to trial required a finding a trial
commences no later than the time a jury is impaneled. (Granderson, at p. 708.)
Here there is no need to consider the factors discussed in Granderson, as
defendant’s absence unquestionably followed the commencement of trial. Those
factors are not relevant to the issue actually presented by this case: whether
defendant’s failure to appear at trial after his recapture was or was not voluntary.
Neither are they relevant to an issue the majority discusses that is not presented by
this case: whether avoiding disruptions such as those enumerated in Granderson
justifies proceeding in a defendant’s voluntary absence. (See maj. opn., ante, at
pp. 7-8.) A court would not abuse its discretion by proceeding in a defendant’s
voluntary absence even if a delay in trial would be only minimally disruptive. The
majority’s discussion of Granderson therefore is unnecessary and potentially
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Concepcion
Review Granted XXX 141 Cal.App.4th 872
Date Filed: October 27, 2008
Judge: Suzanne W. Knauf*
Attorneys for Appellant:Terrence Verson Scott, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, James
D. Dutton, Steve Oetting and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
*Retired judge of the former Municipal Court for the North County Judicial District, assigned by the Chief
Justice pursuant to article VI, section6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):Terrence Verson Scott
P.O. Box 46115
Los Angeles, CA 90046
Alana Cohen Butler
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issues: (1) Is a defendant who escapes from custody after trial commences voluntarily absent from trial, permitting trial to continue in his absence once he is rearrested and held in custody? (2) If such flight and rearrest does not constitute voluntary absence, is proceeding with trial in such circumstances subject to harmless error analysis, or is it a structural error requiring reversal?
|Mon, 10/27/2008||45 Cal. 4th 77, 193 P.3d 1172, 84 Cal. Rptr. 3d 418||S146288||Review - Criminal Appeal||closed; remittitur issued|
|1||The People (Plaintiff and Respondent)|
Represented by Alana Rachel Butler
Office of the Attorney General
110 "A" Street, Suite 1100
San Diego, CA
|2||Concepcion, Ryan Esteban (Defendant and Appellant)|
North Kern State Prison
P.O. Box 5005
Delano, CA 93216
Represented by Terrence Verson Scott
Attorney at Law
Los Angeles, CA
|Opinion||Justice Carol A. Corrigan|
|Concur||Justice Kathryn M. Werdegar|
|Oct 27 2008||Opinion: Reversed|
|Aug 31 2006||Petition for review filed|
The People, plaintiff and respondent by Alana Cohen Butler, Deputy Attorney General - San Diego [ Petition filed in San Diego ]
|Sep 5 2006||Record requested|
via e-mail to Rachel Borba and Clerk, 4CA2.
|Sep 8 2006||Received Court of Appeal record|
|Sep 15 2006||Answer to petition for review filed|
Ryan E. Concepcion, appellant by Terrence V. Scott, counsel crc.40.1(b)
|Sep 21 2006||Request for depublication (petition for review pending)|
The People, respondent by Alana Cohen Butler, Deputy Attorney General
|Oct 20 2006||Time extended to grant or deny review|
to and including November 29, 2006, or the date upon which review is either granted or denied.
|Nov 15 2006||Petition for review granted (criminal case)|
Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
|Dec 7 2006||Request for extension of time filed|
to January 14, 2007 to file respondents opening brief on the merits.
|Dec 18 2006||Extension of time granted|
to January 14, 2007 to file respondent's opening brief on the merits.
|Dec 19 2006||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Terrence V. Scott is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
|Jan 8 2007||Request for extension of time filed|
Respondent, The People, asking to February 15, 2007 to file the opening brief on the merits.
|Jan 11 2007||Note: Mail returned (unable to forward)|
Ryan E. Conception, appellant
|Jan 16 2007||Extension of time granted|
to February 15, 2007 to file respondents opening brief on the merits.
|Feb 15 2007||Request for extension of time filed|
to March 17, 2007 to file respondents opening brief on the merits. by Alana Cohen Butler, Deputy Attorney General
|Feb 20 2007||Extension of time granted|
to March 17, 2007 to file respondents opening brief on the merits.
|Mar 14 2007||Opening brief on the merits filed|
The People, respondent by Alana Cohen Butler, Deputy Attorney General
|Apr 11 2007||Request for extension of time filed|
answer brief/merits to 6-12-07 Appellant Ryan E. Concepcion Attorney Terrence V. Scott
|Apr 17 2007||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including May 14, 2007.
|May 9 2007||Motion filed (non-AA)|
Motion to strike first argument of Respondent's Opening Brief/Merits Appellant Ryan E. Concepcion Attorney Terrence V. Scott
|May 14 2007||Request for extension of time filed|
answer brief/merits to 6-13-07 Attorney Terrence V. Scott
|May 16 2007||Extension of time granted|
to May 25, 2007 to file appellants answer brief on the merits. No further extensions are contemplated.
|May 23 2007||Motion filed (non-AA)|
Motion to be relieved as counsel for appellant by Terrence C. Scott, counsel
|May 25 2007||Opposition filed|
Respondent's opposition to appellant's motion to strike the first argument of the brief on the merits. by Alana Cohen Buter, Deputy Attorney General
|Jun 13 2007||Request for extension of time filed|
appellants counsel Terrence V. Scott requesting 45 days to July 27, 2007 to file appellants answer. brief on the merits.
|Jun 18 2007||Extension of time granted|
On application of appellant and good cause appearing , it is ordered that the time to serve and fle the answer brief on the merits is extended to and including July 27, 2007.
|Jul 27 2007||Answer brief on the merits filed|
Appellant Ryan Esteban Concepcion Attorney Terrence Verson Scott
|Aug 16 2007||Reply brief filed (case fully briefed)|
The People, respondent by Alana Cohen Buterl, Deputy Attorney General
|Aug 29 2007||Compensation awarded counsel|
|Jul 30 2008||Case ordered on calendar|
to be argued Wednesday, September 3, 2008, at 1:30 p.m., in San Francisco
|Aug 21 2008||Received:|
supplemental Authorities for Oral Argument scheduled for September 3, 2008. by Alana Cohen Buter, Deptuy Attorney General
|Sep 2 2008||Received:|
request to file late additional authorities to be cited at oral argument . by Terrence V. Scott counsel for appellant .
|Sep 3 2008||Cause argued and submitted|
|Oct 22 2008||Change of contact information filed for:|
Terrence V. Scott, attorney for appellant.
|Oct 24 2008||Notice of forthcoming opinion posted|
|Oct 27 2008||Opinion filed: Judgment reversed|
The judgment of the Court of Appeal is reversed. Opinion by: Corrigan, J. -----joined by George, C.J., Kennard, J., Baxter, J., Chin & Moreno, JJ. Concurring Opinion by Werdegar, J.
|Dec 1 2008||Remittitur issued (criminal case)|
|Dec 11 2008||Received:|
receipt for remittitur from Court of Appeal, Fourth Appellate District, Division Two
|Jan 28 2009||Compensation awarded counsel|
|Mar 14 2007||Opening brief on the merits filed|
|Jul 27 2007||Answer brief on the merits filed|
|Aug 16 2007||Reply brief filed (case fully briefed)|
80151829.pdf (5971474 bytes) - Appellant's Answer Brief on the Merits
Petition for Review.doc (56320 bytes) - Petition for Review
Respondent's Opening Brief on the Merits.doc (163840 bytes) - Respondent's Opening Brief on the Merits
Respondent's Reply Brief.doc (50688 bytes) - Respondent's Reply Brief
|May 24, 2011|
Annotated by gavriel jacobs
| Opinion By: Corrigan, J.
Defendant was due to stand trial on several counts stemming from two distinct incidents: a carjacking and a residential burglary. The morning that testimony was scheduled to begin, the defendant escaped from custody. After rejecting defense motions for a mistrial, and instructing the jury not to speculate about the reason for the absence, the judge elected to continue without the defendant present. The defendant was apprehended that same afternoon, but police determined that the earliest he could safely be returned to the courtroom was the following morning. The defendant was only absent for the single day of testimony, and was present the following morning; his attendance was uninterrupted for the remainder of the trial. The jury was later informed through the testimony of police officers that the defendant had escaped, and the jury was further instructed not to consider the escape indicative of guilt of the charged offense. The defendant did not contest the jury instructions given, nor did he testify. He was convicted of the most serious charges, and sentenced to 27 years in prison.
Following conviction, the verdict was overturned by the Court of Appeal, which held that the defendant’s absence from the courtroom became involuntary once he was apprehended (continuing the trial during an involuntary absence being improper), and finding it irrelevant that the initial absence was voluntary. The state appealed to the Supreme Court, which reversed the Court of Appeal and reinstated the trial judgment.
1) Whether California Penal Code section 1043 (b)(2) allows a trial to continue in an escaped defendant’s absence after he has been recaptured, but before the authorities have been able to return him to the courtroom.
2) If the period following re-arrest is not voluntary absence, was the trial court’s decision to proceed without the defendant subject to harmless-error analysis?
3)Once the defendant reappears in the courtroom, does the trial court have a duty to reconsider its prior decision to have proceeded in his absence?
1) A recaptured escapee is still considered voluntarily absent from trial until he can be returned to the courtroom, provided the time between recapture and court appearance is reasonable.
2) Because the Court determined the defendant’s absence remained voluntary, it did not reach the issue of error analysis.
3) The trial court has no duty to reconsider its decision to continue in the defendant’s absence sua sponte; it is the defendant’s duty to challenge the decision upon his return.
The Court first re-affirmed several basic principles of law. First, the Court stated that the defendant has the right to be present at critical stages of the trial, and that witness testimony, which the defendant was absent for, is considered such a critical stage. This right of presence may be either expressly or impliedly waived; escape from the trial proceeding is an implied waiver. California Penal Code Section 1043 (b)(2) allows a non-capital trial to continue without the defendant, so long as the defendant was present at the beginning of the trial and his absence is voluntary.
The Court held that a reasonable period following recapture may be considered voluntary absence because the criminal justice system has no duty to either reward a defendant’s wrongful acts with delay, or instantaneously react to mitigate those acts. The state and society is greatly invested in a trial proceeding, and the fact that a defendant’s escape attempt failed is no reason to impose the cost of delay and disruption on an otherwise orderly trial process.
The Court essentially promulgates a simple two-part factor test for trial courts to follow: First, was the defendant’s absence voluntary? Second, was the time taken to return the recaptured defendant to the courtroom reasonable? Here, the Court found that the voluntariness of the initial absence was uncontested, and that a one-day delay in returning the defendant to trial was reasonable, given the extra security precautions necessary following an escape.
The defendant relied primarily on People v. Connolly, 36 Cal. App. 3d 379 (1973) in arguing that he was entitled to additional determinative process concerning the voluntariness of his absence. In rejecting the comparison, the Court noted that unlike the Connolly defendant, the defendant here failed to challenge the trial court’s finding that his absence was voluntary. He also could not on appeal show any evidence that would suggest the determination of voluntariness was erroneous, and failed to challenge the trial court’s determination that the one-day delay was reasonable (probably irrelevant as the Court here expressly found the delay reasonable and justified).
The defendant argued that because the trial had only just begun the day he absconded (as opposed to several days or weeks into the trial), a delay for his return would have been a simple remedy. The Court rejected this argument, holding that once jeopardy has attached, it is irrelevant when the trial is disrupted.Concurring Opinion By: Werdegar, J.
Judge Werdegar would have held that the trial court should have made a formal factual determination, following an evidentiary hearing, that the delay was reasonable. She believed that the trial court was too unquestioning in accepting police assurances that the defendant could not be returned until the next day.
Nevertheless, she chose to concur with the judgment because the defendant failed to argue this theory to the trial court, viewing this failure as an implicit acknowledgment of reasonableness.Key Cases and Statutes
People v. Connolly, 36 Cal. App. 3d 379 (1973)
People v. Granderson, 67 Ca. App. 4th 703 (1998)
People v. Gutierrez, 29 Cal. 4th 1196 (2003)
Golden v. Newsome, 755 F.2d 1478 (11th Cir. 1985)
Diaz v. United States, 223 U.S. 442 (1912)
California Penal Code Section 1043 (b)(2)
Voluntary absence, Penal Code Section 1043, escape, right to be present, re-arrest, critical stage
|Dec 10, 2008|
Annotated by diana teasland
Written by Claire Reilly
Defendant was charged with offenses arising out of two separate incidents. In the first incident, it was alleged that he carjacked Hector Lopez’s vehicle at gunpoint, led the police on a high-speed chase, and then crashed the car into a tree. The police found a gun in the car. In the second incident, it was alleged that he and a companion, after being admitted into Lettie Hall’s home, stole the gun she had offered to sell them.
Defendant was present when his trial began with jury selection on February 11, 2004. On February 17, when opening statements and testimony were set to begin, he was not present, as he escaped that morning while in transport from prison to court. The courthouse was locked down. The trial court explained to the jury that defendant would not be present. It instructed that they could not speculate about the reason for his absence and secured assurance from the jury that they would not let their reactions to the lock down affect their performance as jurors.
The court denied defense counsel’s motion for a continuance or mistrial, having determined that the jurors were able to act fairly and that defendant had voluntarily absented himself once trial had begun. The court recessed, with opening statements set to begin after lunch. Before opening statements, the court learned that defendant had been apprehended, was in custody, and could be returned the following day (the defendant was found 20 miles away). The court elected to proceed with opening statements and the direct and cross-examinations of all 3 prosecution witnesses in the Lopez case.
Defendant was present the next morning and for the duration of the trial. He was present for the direct and cross-examinations of 2 prosecution witnesses in the Hall case and the testimony of 2 officers concerning his escape. The jury was instructed that evidence of the escape could be used in light of all other proved facts to determine guilt. The defense put on no witnesses.
Defendant was convicted of carjacking, use of a firearm, possession of a firearm by a felon, and flight from a police officer in the Lopez case. In the Hall case, he was convicted of grand theft. The court found that defendant had been convicted of a serious felony (a strike under the Three Strikes Law) and sentenced him to 27 years in prison.
The appellate court reversed the entire judgment, reasoning that defendant’s absence from trial ceased to be voluntary once he was apprehended after his escape.
1. Was defendant voluntarily absent when the court convened the morning of February 17?
2. Was the court permitted to proceed with trial in the defendant’s voluntary absence?
3. Was the court permitted to proceed with trial in the defendant’s absence once he was rearrested and in police custody?
4. Once defendant was recaptured, was it reasonable to take an afternoon to return him to court?
1. Yes, defendant was voluntarily absent the morning of February 17. Defendant does not contest the voluntariness of his absence as a result of his escape.
2. Yes, the court is authorized by statute to proceed with a trial in the defendant’s absence if the defendant is present when the trial begins but later voluntarily absents himself.
3. Yes, although defendant was in custody, his absence remained voluntary. An escapee is voluntarily absent from the time he absconds until he can reasonably be returned to court.
4. Yes, defendant was found 20 miles from the courthouse and because of defendant’s escape, a heightened degree of security was needed to transport him. There is nothing in the record to support that a delay until the next morning was unreasonable.
Holding 1. The defendant did not and does not contest that his absence was voluntary. A criminal defendant’s right to be present when witnesses testify at trial, protected by the confrontation clause of the 6th Amendment and the due process clause of the 14th Amendment of the U.S. Constitution, is subject to express or implied waiver. Escape during trial constitutes implied waiver.
Holding 2. It is established that trial begins when the jury is sworn. California Penal Code Section 1043, subdivision (b)(2) permits a trial court to proceed in the defendant’s absence if the defendant is present when the trial begins, but later voluntarily absents himself. It is clear that this provision was designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself. Delay is always disruptive to some degree. In this case, civilian witnesses, already fearful of testifying against defendant, were even more afraid after his escape. Delay would have done these witnesses a considerable disservice.
Holding 3. A rule that holds an escapee is voluntarily absent from the time he escapes until he can reasonably be returned to court satisfies both constitutional and statutory requirements. The appellate court’s rule that an escapee’s absence becomes voluntary once he is taken back into custody is too rigid and would blind the courts to the totality of the circumstances. Requiring in all cases that trial not proceed until the defendant is returned would frustrate the orderly processes of trial.
Holding 4. An appellate court’s role in reviewing a trial court’s decision to proceed in the defendant’s absence is limited to asking whether, under the totality of the circumstances, the trial court’s determination of two factual questions was supported by substantial evidence: (1) Was defendant voluntarily absent when the court convened the morning of February 17? (2) Once defendant was recaptured, was it reasonable to take an afternoon to return him to court? The trial court answered both of these questions in the affirmative and its determinations were supported by substantial evidence.
With respect to the first question, the trial court was entitled to base its determination on defense counsel’s report to the court that defendant had escaped and the later confirmation by the sergeant responsible for transporting prisoners to court. The court had no duty to reconsider its ruling sua sponte once the defendant was recaptured. It was defendant’s responsibility to move for reconsideration, which he failed to do. Further, defendant does not even now contest the voluntariness of his absence.
With respect to the second question, there is nothing in the record to support defendant’s argument that it was unreasonable for the police to say he could not be returned to court that afternoon. Given that the police were dealing with an emergency situation caused by the escape, the delay was reasonable.