Stanford Law School - Robert Crown Law Library

Filed 3/6/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S102162
v.
Ct.App. 2/7 B145089
RAUL GOMEZ GUTIERREZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. VA059091

In a noncapital felony case, Penal Code1 section 1043, subdivision (b)(2),
permits a trial court to continue with trial in a defendant’s absence, after the trial
has commenced in the defendant’s presence, if the defendant is “voluntarily
absent.” We must decide here whether a defendant in custody who refuses to
leave a court lockup facility to attend his trial is “voluntarily absent,” and if, under
these circumstances, the trial court must obtain the defendant’s express waiver of
the right to be present. Contrary to the Court of Appeal majority, we conclude that
the defendant here was “voluntarily absent,” and that his express waiver was not
necessary.

1
All further statutory references are to this code unless otherwise indicated.
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FACTUAL AND PROCEDURAL BACKGROUND
Defendant Raul Gomez Gutierrez, along with codefendant Elisaldo Abrego,
were charged in connection with the April 7, 2000, robbery of Anabel Bustamante
and Adan Sanchez. Their trial began on August 21, 2000. On the second day of
the three-day trial, defense counsel informed the court that defendant refused to
leave the court lockup. Meanwhile, Abrego pleaded guilty to the charges.
On August 22, defense counsel, along with a court reporter, bailiff, and
court-appointed Spanish interpreter, went to the lockup to speak to defendant
about his refusal to leave the lockup, and his request for a new attorney his family
purportedly hired.2 The following conversation took place:
“[Defense counsel:] Okay, I spoke to the judge, told him of your intention.
There’s nobody out there, no family. [¶] If you don’t want to come out, the judge
says fine, we’re going to do the trial without your presence. The judge has no time
for fun and games. [¶] We’re in the middle of trial. You want to do that, that’s
fine. I’ll represent you without you there. [¶] Personally, I don’t need your
presence there. I know what I’m going to say and argue. [¶] If you want to do
that and waste the court’s time, the judge is prepared to let you spend the rest of
your trial here away from everybody. That’s what we’re going to do.
“[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. [¶] If you want to come out and talk to the

2
The trial court previously denied defendant’s motion to substitute new
counsel under People v. Marsden (1970) 2 Cal.3d 118.
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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, 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
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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.
After a one-day absence, defendant returned to the courtroom for closing
arguments. Defense counsel, on the record, stated: “I would just like to make it
again [sic] another clear record although we did it sufficiently yesterday that up
until this time my client did not wish to participate in this trial. Not only did he
not wish to as of approximately 10:45 yesterday morning, but also before we
commenced yesterday afternoon. . . . Be that as it may, he apparently chose to
come out today for closing arguments.” The trial judge replied: “Yes, all right. I
believe we did put [defendant’s] decision voluntarily to absent himself from the
proceeding yesterday afternoon. . . . I believe the record reflects that [defendant]
voluntarily absented himself from the proceedings yesterday afternoon. . . .”
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
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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 is
“voluntarily absent” under section 1043, subdivision (b)(2), and whether the
defendant’s express waiver of the right to presence is required under the
circumstances.
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.)
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; Cal. Const., art. I, § 15; People v.
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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.) 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, disapproved on another point in
People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) 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; see
also Fed. Rules Crim.Proc., rule 43(b), 18 U.S.C. [“voluntarily absent” or
“disruptive” defendant].) Under the Penal Code, a defendant “at all other
proceedings” may waive in writing the right to be personally present with leave of
court. (§ 977, subd. (b)(1); see also id., subd. (b)(2) [form of written waiver].)
Also, a defendant’s absence “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
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verdict in . . . [¶] [a]ny prosecution for an offense which is not punishable by death
in which the defendant is voluntarily absent” (§ 1043, subd. (b)(2)).3
“ ‘[S]ection 977, subdivision (b)(1), the subdivision that authorizes waiver
for felony defendants, expressly provides for situations in which the defendant
cannot waive his right to be present, including during the taking of evidence
before the trier of fact.’ ” (People v. Majors (1998) 18 Cal.4th 385, 415; People v.
Ochoa (2001) 26 Cal.4th 398, 435.) In other words, “section 977 requires a
defendant to be present at the five fundamental proceedings and entitles him to be
present at all others.” (Ochoa, supra, at p. 435.) In this case, defendant was
absent from trial one day during which defense counsel cross-examined victim
Bustamante, and victim Sanchez and two police officers testified. Defendant
returned to the courtroom for closing arguments and was present in court until the
jury reached a verdict. It is undisputed that defendant did not waive in writing his
right to presence under section 977, subdivision (b).
Unlike section 977, subdivision (b)(1), section 1043, subdivision (b)(1),
does not specify “certain fundamental proceedings” in which a noncapital
defendant may not be absent. (People v. Ochoa, supra, 26 Cal.4th at p. 435;
People v. Majors, supra, 18 Cal.4th at p. 415.) We conclude that section 977,
subdivision (b)(1)’s presence requirement does not preclude a defendant from
being “voluntarily absent” during the taking of evidence under section 1043,
subdivision (b)(2). Section 977, subdivision (b)(1), provides that under certain
circumstances, a defendant may execute a written waiver of the right to presence.
Under that provision, a trial may commence even in the defendant’s absence if the

3
A trial court may also continue with trial in a defendant’s absence if, after
warning the defendant with the threat of removal, the defendant continues to be
disruptive. (§ 1043, subd. (b)(1).)
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defendant executes a written waiver. (§ 977, subd. (b).) For example, a defendant
may be absent when the jury is selected, but he cannot be absent from the entire
trial without ever appearing. But when a trial has commenced in a defendant’s
presence, section 1043 applies. As relevant here, section 1043, subdivision (b)(2),
provides that a defendant’s voluntary absence does not prevent the trial from
continuing. We perceive that these statutes address different concerns and do not
conflict; rather, executing a written waiver and being voluntarily absent are treated
as different events under these two statutes.4
A contrary interpretation would render section 977, subdivision (b)(1)’s
presence requirement absolute, which we have already rejected. (People v. Welch
(1999) 20 Cal.4th 701, 774.) Section 977, subdivision (b)(1), is “subject to
qualification under section 1043, subdivision (b)(1), which permits a felony trial in
a defendant’s absence” if the defendant is disruptive. (Welch, supra, at p. 774.)
We see no reason why the qualification should not extend also to section 1043,
subdivision (b)(2), in this context. “ ‘[T]here can be no doubt whatever that the
governmental prerogative to proceed with a trial may not be defeated by conduct
of the accused that prevents the trial from going forward.’ [Citation.]” (Taylor v.
United States (1973) 414 U.S. 17, 20 [defendant’s voluntary absence].)5
Accordingly, because defendant here was present when the trial began, section

4
Section 1043, subdivision (b)(2), “shall not limit the right of a defendant to
waive his right to be present in accordance with Section 977.” (§ 1043, subd. (d).)
5
While defendant argues that he did not knowingly and voluntarily waive his
right to presence, he does not contend that a finding of voluntary absence under
section 1043, subdivision (b)(2), constitutes an insufficient waiver of a defendant’s
right to presence. (See Snyder v. Massachusetts, supra, 291 U.S. at p. 106
[“privilege may be lost by consent or . . . by misconduct”].)
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1043, subdivision (b)(2), governs, notwithstanding section 977, subdivision
(b)(1)’s presence requirement.
Section 1043, subdivision (b)(2), “was enacted in 1970 and prior thereto
when a defendant was absent from the trial, the statute required the court to
declare a mistrial.” (People v. Connolly (1973) 36 Cal.App.3d 379, 383.) By its
terms, section 1043, subdivision (b)(2), does not distinguish between custodial and
noncustodial defendants. Several Court of Appeal cases have held that custodial
defendants may be deemed “voluntarily absent” under this provision. (People v.
Ruiz (2001) 92 Cal.App.4th 162, 168-169; People v. Howard (1996) 47
Cal.App.4th 1526, 1538-1539, disapproved on other grounds in People v.
Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11.)
Mirroring rule 43 of the Federal Rules of Criminal Procedure, section 1043,
subdivision (b)(2), adopted the majority rule in the United States. (People v.
Connolly, supra, 36 Cal.App.3d at p. 384, citing Diaz v. United States (1912) 223
U.S. 442, 455-456.) “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.” (Connolly, supra, at p.
384.) In determining whether a defendant is absent voluntarily, a court must look
at the “totality of the facts.” (Id. at p. 385.)
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
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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 [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,
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, fn. 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 without his
presence.” (Id. at p. 279.) However, there is a difference between removing a
defendant for threatening to be disruptive, as in People v. Lewis, and accepting a
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defendant’s voluntary absence, as in the instant case. As we explained in a similar
context, “Here, the trial court did not permit defendant to ‘waive’ his presence in
the sense of voluntarily absenting himself from the courtroom. Rather, it is
abundantly clear from the trial court’s remarks that the only reason it permitted
defendant to be absent was that it accepted his representations that he was likely to
be disruptive.” (People v. Majors, supra, 18 Cal.4th at p. 415 [potentially
disruptive capital defendant not “voluntarily absent”]; § 1043, subd. (b)(1).)
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.” (United States 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
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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, 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.” While these statements in isolation
may suggest that defense counsel, and not defendant, made the decision for
defendant to stay in the lockup, these statements must be viewed in context under
the “totality of the facts.” (People v. Connolly, supra, 36 Cal.App.3d at p. 385.)
The record reflects that defense counsel asked defendant to return to the courtroom
to speak directly to the judge about his “demand.” Counsel specifically told
defendant that the trial would proceed if defendant chose not to leave the lockup:
“If you don’t want to come out, the judge says fine, we’re going to do the trial
without your presence. The judge has no time for fun and games.” Despite
counsel’s urging and admonition, defendant refused to leave. In this context,
defense counsel’s statements suggest the remarks of a frustrated attorney facing a
client’s apparent indecisiveness about returning to the courtroom to state his
decision not to be present, rather than of one who made the decision for him.
Moreover, defendant’s subsequent statement to the bailiff that he did not want to
return to the courtroom supports the conclusion that defendant himself decided not
to be present.
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Relying on federal cases, the Court of Appeal majority here concluded that
defendant did not “voluntarily absent” himself from trial. (See United States v.
Gomez (10th Cir. 1995) 67 F.3d 1515, 1528; United States v. Watkins, supra, 983
F.2d at pp. 1421-1422; Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 395-397;
United States 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
(N.M. 1988) 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
Procedure, the Cross Court of Appeals concluded that rule 43 “has no clear
application to defendants in custody. No case, prior to or since the Rule, has even
suggested that a defendant in custody, other than escaping, can ‘voluntarily
absent’ himself from his trial.” (Cross v. United States, supra, 325 F.2d at p. 631,
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fns. omitted; see also Diaz v. United States, supra, 223 U.S. at p. 455 [custodial
defendant incapable of waiving right to presence “because his presence or absence
is not within his own control”].)
Because the federal court concluded that defendant Cross did not validly
waive the right to be present (Cross v. United States, supra, 325 F.2d at pp. 632-
633), and defendant Diaz was not in custody when he voluntarily absented himself
(Diaz v. United States, supra, 223 U.S. at p. 445), the conclusion in these cases
that a defendant in custody cannot waive the right to presence is arguably dictum.
(United States v. Gordon, supra, 829 F.2d at p. 125, fn. 7 [majority holding
defendant must personally waive right to presence on the record].) “There is even
some authority, albeit dictum, for the proposition that a defendant in custody does
not have the power to waive his right to be present ‘because his presence or
absence is not within his own control.’ ” (Ibid., citing Diaz, Cross, and other
cases].)6
As noted, section 1043, subdivision (b)(2)’s statutory language does not
distinguish between custodial and noncustodial defendants. (See ante, at p. 9.)
Moreover, the underlying premise, that a custodial defendant cannot be absent
voluntarily because “presence or absence is not within his own control” (Diaz v.
United States, supra, 223 U.S. at p. 455), is an unrealistic view of a defendant’s
volition and resolve to remain absent from court proceedings. A person in
custody, as any person, can voluntarily choose to be absent. As the dissent below
recognized, a bailiff could drag an unwilling and uncooperative defendant out of

6
Indeed, in the Gordon dissent’s view, Cross v. United States has been
“thoroughly undermined by later Supreme Court authority.” (United States v.
Gordon, supra, 829 F.2d at p. 130 (dis. opn. of Williams, J.) [discussing Taylor v.
United States, supra, 414 U.S. 17, and United States v. Gagnon, supra, 470 U.S.
522].)
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the lockup to the courtroom, but doing so would expose the bailiff and others,
including the defendant, to bodily injury. More importantly, if we did not
recognize that a custodial defendant may be absent voluntarily, we inevitably
would run the risk that a defendant would “disrupt the courtroom in order to
accomplish his removal.” (People v. Arias (1996) 13 Cal.4th 92, 147.) We have
already rejected that notion: “It would be anomalous, we reasoned, if the right [to
presence] could not also be waived by more peaceable means. ‘To hold otherwise
. . . would force a defendant into “the untenable position of having to disrupt the
courtroom to such an extreme as to result in his removal, thereby seriously
prejudicing his case.” [Citations.]’ ” (Ibid.)
The additional federal cases on which the Court of Appeal majority relied
are distinguishable. In one case, unlike here, defense counsel failed to appear at
trial, which failure the trial court imputed to the defendant. (United States v.
Gomez, supra, 67 F.3d at pp. 1527-1528 [no waiver where both counsel and
defendant were absent when court answered jury questions].) In other cases,
defense counsel sought to waive the defendant’s right to presence without any
indication of the defendant’s intent. (Larson v. Tansy, supra, 911 F.2d at pp. 396-
397 [no waiver of right to presence where defendant did not speak to counsel and
spent most of trial with his head on the table]; United States v. Gordon, supra, 829
F.2d at pp. 124-126 [no waiver where counsel represented that defendant, for
“tactical” reasons, declined to be present in the courtroom].) Finally, in another
case, again unlike this, the defendant’s statements and actions were “ambiguous.”
(United States v. Watkins, supra, 983 F.2d at p. 1420 [no waiver where
“defendant’s conduct in the courtroom was completely passive and susceptible to
several interpretations”].)
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.
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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.)
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.
CHIN,
J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gutierrez
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 10/9/01 - 2d Dist., Div. 7
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

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Opinion No.

S102162
Date Filed: March 6, 2003
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Court:

Superior
County: Los Angeles
Judge: C. Robert Simpson, Jr.

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Attorneys for Appellant:

Tracy J. Dressner, under appointment by the Supreme Court, and Maureen J. Shanahan, under appointment
by the Court of Appeal, for Defendant and Appellant.

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Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Marc E. Turchin, Acting Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney
General, Robert F. Katz, Karla Cottis and David C. Cook, Deputy Attorneys General, for Plaintiff and
Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Tracy J. Dressner
3115 Foothill Blvd., #M-172
La Crescenta, CA 91214
(818) 248-2961

David C. Cook
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-4991

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Opinion Information

Date:	Docket Number:
Thu, 03/06/2003	S102162

Disposition
Mar 6 2003	Opinion: Reversed

Dockets
Nov 16 2001	Petition for review filed   respondent People
Dec 12 2001	Record requested
Dec 12 2001	Received Court of Appeal record   1 doghouse [entire record--being sent o/n]
Dec 13 2001	Received Court of Appeal record   B145089 -- one doghouse
Jan 3 2002	Petition for Review Granted (criminal case)   Votes: George CJ., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Jan 3 2002	Note:   Grant letter prepared
Feb 22 2002	Counsel appointment order filed   Tracy Dressner for appellant Gutierrez. Appellant's brief on the merits (answer) shall be served and filed thirty (30) days from the date respondent's opening brief on the merits is filed.
Mar 14 2002	Telephone conversation with:   counsel for Respondent {The People} regarding the filing of the Opening Brief on the Merits.
Mar 14 2002	Request for extension of time filed   or, in the alternative, relief/request from default, for the A.G.'s Opening Brief/Merits.
Mar 15 2002	Received:   Respondent A.G.'s Opening Brief/ Merits [late]
Mar 18 2002	Opening brief on the merits filed   By Respondent {The People}. Filed with permission.
Apr 10 2002	Request for extension of time filed   by appellant to file the answer brief on the merits on or before 5/20/2002..
Apr 11 2002	Extension of time granted   appellant to and including 5/20/2002 to file the answer brief on the merits.
May 22 2002	Answer brief on the merits filed   By appellant {Raul Gomez Gutierrez} / 40(K).
Jun 11 2002	Reply brief filed (case fully briefed)   by respondent People
Nov 27 2002	Case ordered on calendar   1-7-03, 9am, S.F.
Jan 7 2003	Cause argued and submitted
Mar 6 2003	Opinion filed: Judgment reversed   and Remanded (C/A/ Judgment) Majority Opinion by Chin, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Brown & Moreno, JJ.
Mar 25 2003	Rehearing petition filed   by counsel for defendant and appellant [Raul Gomez Gutierrez] CRC 40k/Cert.Mail
Mar 27 2003	Time extended to consider modification or rehearing   to and including June 13, 2003
May 8 2003	Order filed   The order filed on March 27, 2003, extending the time for granting or denying rehearing in the above-entitled case until June 13, 2003, is amended nucn pro tunc to read, in its entirety: "The time for granting or denying rehearing in the above-entitled case is hereby extended to and including June 4, 2003, or the date upon which rehearing is either granted or denied, whichever occurs first".
May 14 2003	Rehearing denied
May 14 2003	Remittitur issued (criminal case)
May 22 2003	Received:   Receipt for remittitur from CA2/Div. 7
Jun 13 2003	Returned record   B145089 [S102162] People v. Gutierez consisting of one doghouse to Second District, Division Seven, via our Los Angeles Supreme Court Clerk's Office. Attn: Pat Quinn, Deputy Clerk. Shipped By: UPS Carrier this afternoon.
Jul 30 2003	Compensation awarded counsel   Atty Dressner
Aug 18 2003	Received letter from:   U.S.S.C. dated 8/14/2003, petition for writ of certiorari filed 8/5/2003, placed on the docket 8/14/2003, as No. 03-5842.
Oct 17 2003	Received letter from:   U.S.S.C. dated 10-14-2003, writ of certiorari denied.

Briefs
Mar 18 2002	Opening brief on the merits filed
May 22 2002	Answer brief on the merits filed
Jun 11 2002	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website