IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS ANTONIO RAMIREZ,
Defendant and Appellant.
S262010
Fifth Appellate District
F076126
Tuolumne County Superior Court
CRF50964
December 5, 2022
Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Corrigan, Groban, Jenkins, and Guerrero
concurred.
Justices Liu filed a dissenting opinion.
Justice Kruger filed a dissenting opinion.
PEOPLE v. RAMIREZ
S262010
Opinion of the Court by Cantil-Sakauye, C. J.
A criminal defendant has a constitutional right to be
present at trial. Yet, once trial has commenced in the
defendant’s presence in a noncapital felony case, the trial court
may continue the trial in the defendant’s absence under Penal
Code section 1043, subdivision (b)(2) (hereafter section
1043(b)(2)), provided that the absence is voluntary.1 We granted
review in this matter to decide whether the Court of Appeal
erred when it upheld the trial court’s finding that defendant
Marcos Antonio Ramirez was voluntarily absent under section
1043(b)(2).
Defendant failed to appear in court on the second day of
trial. Earlier that morning, emergency medical personnel and
police officers had been dispatched to defendant’s home after a
possible drug overdose was reported. According to a police
officer who responded to the home, defendant had initially
declined medical care, but ultimately decided to be taken by his
mother to a hospital rather than to court. The trial court ruled
that defendant was voluntarily absent under the circumstances,
and it continued trial without him in accordance with section
1043(b)(2).
On appeal, defendant claimed the trial court violated his
constitutional rights by finding him to be voluntarily absent
1
Subsequent statutory references are to the Penal Code.
1
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
without conducting an evidentiary hearing regarding the
circumstances of his absence. A divided Court of Appeal ruled
that substantial evidence supported the trial court’s finding that
defendant voluntarily absented himself from trial. It further
ruled that the court’s decision to proceed with trial, rather than
grant defense counsel’s motion for a one-day continuance,
constituted harmless error. (People v. Ramirez (Mar. 5, 2020,
F076126) [nonpub. opn.].
A trial court must assess the totality of facts when
determining whether a defendant is voluntarily absent under
section 1043(b)(2). A defendant’s absence from trial due to drug
use is not per se voluntary for purposes of section 1043(b)(2).
Rather, it is among the relevant circumstances that a trial court
must consider when it decides whether a defendant has
voluntarily absented himself or herself from trial. To the extent
the trial court’s ruling or the Court of Appeal’s decision suggests
that a defendant who ingests illicit drugs and subsequently
seeks medical attention is voluntarily absent as a matter of law,
we disagree with this proposition.
Nevertheless, we hold that substantial evidence supports
the trial court’s finding of voluntary absence under the
circumstances. In Conservatorship of O.B. (2020) 9 Cal.5th 989,
995–996, we explained that when an appellate court reviews a
finding that a fact has been proved by clear and convincing
evidence, an intermediate standard of proof, the reviewing court
evaluates “whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found
it highly probable that the fact was true.” Assuming without
deciding that we employ this heightened review to the trial
court’s determination that defendant’s voluntary absence was
clearly established, we conclude that the record as a whole
2
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
contains substantial evidence from which a reasonable fact
finder could have found it highly probable that defendant was
voluntarily absent. Because the Court of Appeal upheld the trial
court’s determination that defendant had voluntarily absented
himself from trial under section 1043(b)(2), we affirm the
judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with first degree residential
burglary. (§ 459.) He pleaded not guilty to the charge and a jury
trial was set for April 12, 2017, but he failed to appear on that
date. Defense counsel informed the court that defendant’s
mother had called his office and notified him that defendant was
ill. The trial court vacated the jury trial and ordered defendant
to appear for trial setting the next day. It also issued a bench
warrant but stayed execution of the warrant until the following
day. On April 13, after the trial court received a doctor’s note
regarding defendant’s prior illness, it rescheduled trial for
July 5, 2017.
Defendant was present with counsel at the start of trial on
July 5, at which time the jury was selected and sworn in.
Following preliminary instructions to the jury, the trial court
released the jurors for the day and ordered them to return the
next day at 8:30 a.m. Defendant was released on his previously
sworn promise to appear.
On the morning of July 6, defendant failed to appear in
court. At 9:30 a.m., outside the presence of the jury, the court
called the matter with the prosecutor, defense counsel, and
Sonora Police Officer John Bowly present to recap an earlier in
camera discussion regarding defendant’s absence. The court
summarized:
3
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
“THE COURT: It appears this morning [defendant]
injected or ingested heroin and methamphetamine — at least
the report to the Court indicated he overdosed and medical
personnel were sent to his home. . . . [T]he first alert to this
condition was given to [defense counsel] by [defendant’s]
mother, and [defense counsel] then notified [the prosecutor] by
e-mail of a problem. When . . . counsel arrived today to court,
I had been in chambers. We discussed the situation.
My understanding was that — again, that emergency personnel
were at the scene and examined [defendant,] who refused
medical treatment.
“It’s my understanding that Officer Norris, who was
present at the scene, had observed the defendant at the time
medical treatment was refused. The Court had Officer Bowly
contact Officer Norris to explain the situation, and . . . I asked
Officer Norris to go to the defendant’s home and advise him that
we were expecting him to show up for trial. And the first
response from the defendant was that he would be here — he
will be here for trial. And I advised him that if he failed to
appear in 15 minutes, which is a reasonable time to arrive in
court given the distance of his home from the courthouse, that
I would proceed to try him in his absence. [Defense counsel] . . .
then asked if he was going to go to the hospital, and the
defendant then claimed he wanted to go to the hospital. And at
that point I don’t know if he’s gone to the hospital or not.”
Defense counsel then received a call from defendant’s
mother, and reported that she stated she was with defendant at
the emergency room waiting to see a physician. The following
colloquy occurred:
4
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
“THE COURT: All right. It’s also my understanding . . .
that this is the second time that [defendant] has been sick on
the day of trial. The first time, which I believe was back in April
when this case was set for trial, on the day of trial he requested
his mother report to the Court that he was sick with the flu.
Court continued his trial and issued a bench warrant and
ordered him to appear the next day. The next day his mother
appeared, not the defendant, and she had a note from a doctor
that said he was seen at the Sonora Regional Medical Center.[2]
[¶] Any other facts, [c]ounsel, that should be on the record
regarding this incident?
“[Prosecutor]: Yes, your Honor. . . . The Court mentioned
in the beginning that the information was he had ingested drugs
this morning. I think that the information was the mom
believed he had gone out with another individual. She thinks
he came back home around 2:00 a.m. It was my understanding
that he ingested it sometime in the night.
“I received a text message from Officer Bowly . . . at
7:00 a.m. in the morning indicating that at 7:00 a.m. [the]
Sonora Police Department had responded to [defendant’s] home
2
The minute order indicates that defendant failed to
appear in court on April 12, 2017, but was present in court on
April 13. However, in its recitation of facts concerning
defendant’s second absence from trial on July 6, the trial court
stated twice that defendant’s mother, and not defendant, was
present in court on April 13. Neither the prosecutor nor defense
counsel voiced that the court was mistaken or otherwise
indicated that defendant had personally appeared on April 13.
In any event, it is undisputed that defendant did not appear on
April 12, the date when his trial was initially set, and the trial
court did not assign significant weight to defendant’s asserted
presence (or failure to appear) in court the following day.
5
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
for the mother reporting that there was a potential overdose on
heroin. When the officers arrived medical was there, and at
7:24 a.m. I got a message that the defendant declined medical
attention and refused to go in an ambulance to the hospital.
That was 7:24 a.m. Our court hearing today was at 8:30 a.m.
He did not show up at 8:30.
“When we met with the judge and the phone call was
placed and Officer Norris responded back to the house, it was at
. . . approximately 9:25. The defendant originally indicated over
the phone — which we can all hear Officer Norris, that he was
going to come at about 9:30 this morning. When the Court
indicated that Officer Norris should give him a ride, he was then
asked if he was going to the hospital. At that point, he switched,
instead of coming to court, that he would rather go to the
hospital.
“Apparently, he is waiting to see the doctor. It doesn’t
appear that he’s not conscious. We also have information that
he appeared to Officer Norris to be coherent when answering the
questions to medical. He was able to walk unassisted. He was
conscious and apparently still appears to be that way.
“As the Court mentioned, this is the second time, I believe,
the defendant is voluntarily trying to avoid the process of the
Court.
“Those [are] additional facts I wanted to put on the record,
he declined medical and then chooses to go to the hospital
some — now almost getting to way over an hour after when he
was suppose[d] to be here and two hours after medical first
contacted him.
“THE COURT: [Defense counsel], would you like to put
any other facts on the record?
6
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
“[Defense counsel]: Yes, your Honor. When we spoke to
Officer Norris, Officer Norris clearly indicated that defendant
was . . . under the influence of drugs. [¶] In speaking to the
mother, she said that [defendant] was nodding out and being
conscious and nonresponsive, and she said she was going to try
to take him to the hospital. Then on the last call [defendant’s
mother] said she was taking him out to the car to take him to
the hospital. This latest phone call says that she was successful
in getting him to the car.
“[Defendant] is 19 years old. He does have some learning
disabilities. So a lot of things he says on the phone, your Honor,
cannot be taken at face value. [¶] And also if [defendant is]
under the influence of drugs, I think he is likely to say anything
to the policeman that was at his home. Therefore, I will suggest
we continue the case until tomorrow 8:30 or declare a mistrial.
“[Prosecutor]: And, your Honor, I have plans to be out of
town tomorrow afternoon that have been in place for some time
now.
“THE COURT: All right. . . . [Section 1043(b)(2)] . . .
provides that the absence of a defendant in a criminal felony
case shouldn’t prevent the . . . continuing with the trial that’s
already been commenced, the record will reflect [defendant] was
present during jury selection process and when the jury was
sworn. And so, again, his absence should not necessarily
prevent the continuance of the trial all the way through verdict
if the defendant is voluntarily absent from trial.
“So the issue before the Court is whether or not
[defendant] is voluntarily absent from the trial. And clearly the
obvious cases — some case law supports this where the
defendant escapes or absents himself from the trial or when
7
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
there is disruptive behavior, and the defendant is warned he will
be removed from the courtroom because of disruptive behavior.
“But I think it’s clear that in any case, criminal or civil,
the law doesn’t allow him to take advantage of his own
wrongdoing to delay the process of the court. [Defendant]
voluntarily ingested controlled substances to the extent that it
required emergency response by police and emergency medical
care, emergency medical personnel. Apparently, he was not as
seriously — in such a serious condition that he cannot refuse
treatment and which he in fact did. And it was only when he
was asked if he was going to the hospital after I advised him to
be in court in 15 minutes, that Officer Norris will give him a
ride, that he decides to go to the hospital.
“This is the second time on the day of trial or the first time
on the day of trial before it commenced that he — his mother,
again, reported that he had a medical condition, specifically the
flu, I believe, and he could not be present; he was vomiting and
could not be present. It wasn’t until the next day she came in
with a doctor’s note that he was in fact seen at the hospital. We
have no idea of the nature of his condition or what he was seen
for or what the diagnosis was, just that he went to the hospital
the next day.
“In this case the trial commenced. We get a call in the
morning of the trial or the Court was advised the morning of the
trial that he has engaged in some conduct voluntarily which
made it — prevented him from attending the trial. Given these
circumstances, I think [defendant] voluntarily engaged in
conduct that resulted in him being absent from his own trial,
and I am going to proceed with this trial in his absence, and
[defense counsel’s] request for a mistrial is denied, request for a
8
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
continuance is denied, but I think there’s an adequate record
here to preserve any issues that might arise on appeal.
“Anything else, Counsel?
“[Prosecutor]: No, your Honor, thank you.
“[Defense counsel]: Just one, he may have voluntarily
used some drugs. I think the court is making a big assumption
that he continued to voluntarily use drugs to the extent that he
needed medical treatment. That portion we really don’t know.
“[Prosecutor]: Well, except that he did not go. The initial
call for medical came at 7:00 a.m. They responded. He refused
medical. He was conscious and coherent, according to Officer
Norris. [¶] It’s now at 9:25 when he is told he needed to be in
court or the judge was going to continue with the trial, did he
then decide he wanted to go to the hospital some two and a half
hours after the first call for medical.
“THE COURT: All right. There’s no evidence that
somebody forcibly injected or caused [defendant] to consume
controlled substances — to use controlled substances to put him
in the condition he was in this morning when his mother made
the phone call to [defense counsel’s] office . . . . His voluntary
use — intentional use of controlled substances is a voluntary act
which caused this circumstance. And I consider that an
intentional act which caused him to be absent from the court.
I think he waived his right to be present at his trial based on
these circumstances, and we will proceed with the trial.”
The court then directed defense counsel to contact
defendant’s mother to inform her the court planned to proceed
with the trial without defendant. Defense counsel confirmed
that he had notified defendant’s mother as instructed, and
proceedings resumed in front of the jury at 9:55 a.m. The court
9
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
informed the jurors that trial would be proceeding in
defendant’s absence and instructed them not to consider the
reason for his absence or the fact that he was absent for part of
the trial in their deliberations.
The prosecution rested its case at approximately
11:00 a.m., following testimony from its two witnesses. Defense
counsel stated that he had no witness “at this time.” The trial
court then called the attorneys for a sidebar conversation and
told defense counsel that it was willing to take a recess if the
defense wanted to bring defendant’s mother to court. Defense
counsel replied, “My thinking was to move things along.” He
suggested, “We can break, go over jury instructions, come back
at 1:15 or 1:30, and then if they’re not here, then I will rest and
then we will do closing.” He also advised the court that he had
asked defendant’s mother to bring defendant to the courtroom if
they were done at the hospital. The court released the jury until
1:15 p.m.
The trial court discussed the proposed jury instructions
with counsel during the break in proceedings. The court
indicated that it would refrain from giving certain jury
instructions until defense counsel confirmed whether defendant
or his mother would testify in the afternoon. The prosecutor
then inquired whether defense counsel had heard from
defendant. Defense counsel responded that he had “been
texting” with defendant’s mother and kept her updated about
the proceedings. According to defense counsel, defendant’s
mother indicated that she was not sure whether defendant could
return to court at 1:30 p.m. to testify, but that they would
“definitely try.” The court asked defense counsel to inform the
prosecutor once he received confirmation regarding whether
defendant would testify.
10
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
Just before 2:00 p.m., defense counsel renewed his motion
for a mistrial on the ground that defendant had gone to the
emergency room that morning and was still not present. The
court denied the renewed motion without further comment. The
court then asked defense counsel whether defendant was still in
the hospital. Defense counsel confirmed that defendant was not
in the hospital, adding, “I think he went back home with mom.”
The court inquired whether that information was reflected in a
text message from defendant’s mother, and defense counsel
responded that it was. The court subsequently noted on the
record that defendant was no longer in the hospital and that it
had given defendant an opportunity to appear at trial and put
on any testimony or defense that he may have had. Defense
counsel noted that defendant’s mother had told him defendant
was “in no state to come to court and take the witness stand,”
adding, “whatever that means.” The defense then rested
without presenting any witnesses. Following court instructions
and closing arguments, the jury began deliberating. The jury
was released for the evening and ordered to reappear the
following day.
On July 7, the jury resumed deliberations and the court
reconvened to address jury questions. Defendant was present
in court after the morning session began. The jury found
defendant not guilty of first degree residential burglary but
found him guilty of the lesser included offense of attempted first
degree burglary.
Following the jury’s verdict, the prosecutor requested that
defendant be remanded into custody prior to sentencing based
on his prior serious felony conviction and multiple court
absences. Defense counsel objected, stating: “Aside from last
April when he had the stomach flu, [defendant] has made all
11
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
court appearances except for yesterday, which might have been
a moment of panic.”
The trial court ordered defendant to be remanded to the
custody of the sheriff until sentencing. It explained:
“[Defendant’s] prior failure to appear from illness, the Court
accommodated. [The] Court established a record in this case as
to why it continued in defendant’s absence. He voluntarily
ingested controlled substances too, which is voluntary conduct
that caused him to absen[t] himself from this trial, whether he’s
able to be here or not, he could have appeared yesterday because
he was home according to the text message you received . . . and
could have been in court. In any event, I think his conduct
suggests he may not appear.”
At the sentencing hearing approximately three weeks
later, the court sentenced defendant to five months in jail,
suspended imposition of the sentence, and placed defendant on
probation for five years. As a condition of probation, defendant
was required to complete a residential drug treatment program.
Defendant appealed his conviction, arguing that the trial
court violated his constitutional rights by finding him
voluntarily absent and proceeding with trial in his absence.
A divided Court of Appeal affirmed the judgment in an
unpublished decision. The majority held that the record at the
time of the trial court’s ruling clearly supported its implied
findings that defendant was aware of the processes taking place
and knew he had a right and obligation to be present, as well as
the court’s express finding that defendant voluntarily absented
himself from trial. The majority found defendant’s claim that
the trial court should have granted his request for a one-day
continuance to be “a much closer question,” but declined to
12
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
address the question on the merits by assuming error but
finding it harmless. (People v. Ramirez, supra, F076126.
The dissenting justice perceived the trial court as having
misapplied the applicable law in finding that defendant was
voluntarily absent from trial, and further concluded that,
without an evidentiary hearing, the record was insufficient for
the trial court to find that defendant intended to waive his
fundamental constitutional right to be present at trial. The
dissenting justice also regarded the trial court’s rejection of the
defense request for an overnight continuance as prejudicial
error.
We granted review to decide whether the Court of Appeal
erred in affirming the trial court’s finding that defendant was
voluntarily absent on the second day of trial.
II. DISCUSSION
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.; Cal. Const., art. I, § 15; People v.
Espinoza (2016) 1 Cal.5th 61, 72 (Espinoza).) Yet that right is
not absolute; it may be expressly or impliedly waived.
(Espinoza, at p. 72.) As the United States Supreme Court
explained more than a century ago, “[W]here the offense is not
capital and the accused is not in custody, the prevailing rule has
been, that if, after the trial has begun in his presence, he
voluntarily absents himself, this does not nullify what has been
done or prevent the completion of trial, but, on the contrary,
operates as a waiver of his right to be present and leaves the
court free to proceed with the trial in like manner and with like
effect as if he were present.” (Diaz v. United States (1912
223 U.S. 442, 455.) California has codified this rule as section
13
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
1043(b)(2). (Espinoza, at p. 72, citing People v. Gutierrez (2003
29 Cal.4th 1196, 1204 (Gutierrez).
“ ‘In determining whether a defendant is absent
voluntarily, a court must look at the “totality of the facts.” ’ ”
(Espinoza, supra, 1 Cal.5th at p. 72.) We have often cited the
high court’s decision in Taylor v. United States (1973) 414
U.S. 17 (Taylor) as instructive when evaluating whether, under
section 1043(b)(2), a defendant is voluntarily absent after trial
has commenced. (Espinoza, at p. 73; People v. Concepcion (2008
45 Cal.4th 77, 84 (Concepcion); Gutierrez, supra, 29 Cal.4th at
p. 1204.) In Taylor, the court confirmed that “ ‘[i]f a defendant
at liberty remains away during his trial the court may proceed
provided it is clearly established that his absence is voluntary.
He must be aware of the processes taking place, of his right and
of his obligation to be present, and he must have no sound
reason for staying away.’ ” (Taylor, at pp. 19–20, fn. 3, quoting
Cureton v. U.S. (D.C. Cir. 1968) 396 F.2d 671, 676.) We have
affirmed that a trial court must adhere to Taylor’s three-part
test when evaluating whether a defendant is voluntarily absent
under section 1043(b)(2). (Espinoza, at p. 74.
We have previously recognized that “[t]he role of an
appellate court in reviewing a finding of voluntary absence is a
limited one. Review is restricted to determining whether the
finding is supported by substantial evidence.” (Espinoza, supra,
1 Cal.5th at p. 74, citing Concepcion, supra, 45 Cal.4th at p. 84.
But we have not yet had occasion to explore how the substantial
evidence standard of review applies in the context of a trial
court’s factual finding that must be “ ‘clearly established.’ ”
(Taylor, supra, 414 U.S. at p. 19, fn. 3.
14
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
Our trial courts typically apply one of three standards of
proof depending on the particular determination of fact: the
“preponderance of the evidence” standard, the “clear and
convincing evidence” standard, or the “beyond a reasonable
doubt” standard. (See Conservatorship of O.B., supra, 9 Cal.5th
at p. 998.) The preponderance of the evidence standard, the
lowest standard of proof, “ ‘ “simply requires the trier of fact ‘to
believe that the existence of a fact is more probable than its
nonexistence.’ ” ’ ” (Ibid.) The clear and convincing evidence
standard, the intermediate standard, “ ‘requires a finding of
high probability’ ” that a fact is true. (Ibid.) The beyond a
reasonable doubt standard, the most rigorous standard of proof,
applies to findings of guilt in criminal matters and requires the
trier of fact to hold “an abiding conviction that the charge is
true” although it “need not eliminate all possible doubt.”
(CALCRIM No. 220; see Conservatorship of O.B., at p. 998,
quoting § 1096.
The parties did not brief the question of what standard of
proof applies when a trial court determines it is “clearly
established” a defendant has voluntarily absented himself from
trial.3 We note that Taylor’s “clearly established” requirement
could arguably convey a heightened standard of proof designed
to protect a defendant’s fundamental constitutional right to be
present, which might suggest the intermediate clear and
convincing standard. (See Gutierrez, supra, 29 Cal.4th at
p. 1209 [explaining that a defendant’s right to presence is
3
When asked at oral argument what the “clearly
established” standard requires, the parties provided slightly
different interpretations but agreed that the standard was no
more stringent than the “clear and convincing evidence”
standard.
15
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
fundamental in our system of justice and guaranteed by our
Constitution]; Conservatorship of O.B., supra, 9 Cal.5th at
p. 999 [clear and convincing standard “applies to various
determinations ‘ “where particularly important individual
interests or rights are at stake” ’ ”].) Nevertheless, we need not
decide this issue. Assuming for our limited purposes that the
trial court’s finding of a clearly established voluntary absence
was akin to a finding by clear and convincing evidence, that
finding is supported even reviewing it under this more
demanding standard applicable to such findings.4
In Conservatorship of O.B., supra, 9 Cal.5th 989, we
clarified how an appellate court is to review the sufficiency of
the evidence associated with a finding made by the trier of fact
pursuant to the clear and convincing standard. Explaining that
“appellate review of the sufficiency of the evidence in support of
a finding requiring clear and convincing proof must account for
the level of confidence this standard demands” (id. at p. 995), we
4
The dissenting opinion would prefer to address what
standard of proof must be met to “clearly establish” that a
defendant’s absence is voluntary, despite neither party having
briefed the issue, because “[n]either party here questions that
‘clearly established’ means something more than proof by a
preponderance of the evidence.” (Dis. opn. of Liu, J., post, at
pp. 3–4.) We are not prepared to agree with this assumption in
light of the parties’ statements at oral argument described ante,
footnote 3, and the holdings of numerous courts to the contrary.
(See, e.g., State v. Moore (Iowa 1979) 276 N.W.2d 437, 440
[voluntary absence must be proved by a preponderance of the
evidence]; State v. Lister (N.H. 1979) 406 A.2d 967, 969 [same];
People v. Anderson (N.Y.App.Div. 2003) 762 N.Y.S.2d 551, 551
[same]; Dorsey v. State (Md.Ct.App. 1998) 709 A.2d 1244, 1253
[same]; Commonwealth v. Carusone (Pa.Super. 1986) 506 A.2d
475, 478 [same].
16
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
concluded that “when reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true” (id. at
pp. 995–996).
Thus, assuming the clear and convincing evidence
standard of proof applies to the trial court’s voluntary absence
determination, the question on review is whether the record as
a whole contains substantial evidence from which a reasonable
fact finder could have found it highly probable that defendant’s
absence was voluntary. Put differently, we review the entire
record to determine whether there is substantial evidence from
which a reasonable fact finder could have found it highly
probable that defendant was “ ‘ “aware of the processes taking
place,’ ” that he knew of ‘ “his right and of his obligation to be
present,” ’ and that he had ‘ “no sound reason for remaining
away.” ’ ” (Espinoza, supra, 1 Cal.5th at p. 74, quoting Taylor,
supra, 414 U.S. at p. 19, fn. 3.) We apply this standard of review
to the present case, keeping in mind that an appellate court
“must view the record in the light most favorable to the [trier of
fact’s finding] and give due deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 996.
We conclude that the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that defendant was voluntarily
absent. Having been present in court on the first day of trial
and been ordered by the court to return the following day, it is
obvious that defendant was aware of the processes taking place
17
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
and knew of his right and obligation to be present the next day.
(See Espinoza, supra, 1 Cal.5th at p. 74.) Defendant does not
dispute this. The only question, then, is whether defendant had
no sound reason for remaining away.
Viewed in the light most favorable to the trial court’s
finding of voluntary absence and giving due deference to how
the court may have evaluated the credibility of those present at
defendant’s home, resolved conflicts in the evidence, and drawn
reasonable inferences from the evidence, the record supports the
trial court’s implicit determination that defendant had no sound
basis for failing to appear on the second day of trial. After
learning that defendant was not present in court and had
ingested illicit drugs to the extent that it prompted an
emergency response, the trial court sent an officer to defendant’s
home to confirm his condition and to arrange for defendant to
come to court. In making its voluntary absence ruling, the court
emphasized that defendant was sufficiently lucid to assess
whether he needed medical treatment, which he initially
refused.5 The court pointed out that it was only after it advised
5
As the prosecutor emphasized at the time of the voluntary
absence ruling, emergency medical services personnel
dispatched to defendant’s home accepted defendant’s refusal of
medical treatment. We take judicial notice on our own motion
of Tuolumne County Emergency Medical Services Agency’s
policy regarding patient refusal of emergency medical services,
which provides that a patient may refuse emergency care only if
emergency medical services personnel determines that the
patient is “competent,” meaning “a patient who is alert and
oriented with the capacity to understand the circumstances
surrounding their illness or impairment and the risks associated
with refusing treatment or transport.” (Tuolumne County
Emergency Medical Services Agency, Patient Refusal of
18
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
defendant to be in court in 15 minutes that defendant decided to
go to the hospital. The court also noted that this was the second
time that defendant had failed to appear on the day of trial, and
although defendant’s mother had reported on the trial date
scheduled in April that defendant was ill with the flu, the court
had “no idea of the nature of his condition or what he was seen
for or what the diagnosis was.” Defense counsel did not
contradict these observations even after the court invited him to
add to the record.
Indeed, to the extent we may consider information provided
to the trial court after it found defendant to be voluntarily
absent, we note that no subsequent evidence undermined the
court’s determination. (Cf. Concepcion, supra, 45 Cal.4th at
p. 85, citing People v. Connolly (1973) 36 Cal.App.3d 379, 384–
385 [noting that “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”].) At
approximately 11:00 a.m., after the prosecution put on its
witnesses, the court and counsel agreed to a recess of more than
two hours in order to give defendant a chance to appear and
Treatment or Transport Against Medical Advice AMA
<https://tuolumnecounty.ca.gov/DocumentCenter/View/20633/
Policy-41000-Patient-Refusal-of-Treatment-or-Against-
Medical-Advice> [as of November 30, 2022]. All internet
citations in this opinion are archived by year, docket number,
and case name at <http://courts.ca.gov/38324.htm>.) Although
the policy is not of substantial consequence to the determination
of this action (see Evid. Code, § 459), it provides useful context
regarding the trial court’s consideration of defendant’s refusal
to accept medical treatment in making its voluntary absence
finding.
19
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
testify, and defense counsel informed defendant’s mother of this
plan. Yet defendant and his mother returned home instead of
coming to court that afternoon. It appears that defendant
himself never contacted his counsel or the court at all during the
entire day to update them regarding his condition — the court
received only uncorroborated information from defendant’s
mother via defense counsel. And when defendant was present
at court the following day, he offered no additional information
regarding the hospital visit, such as the seriousness of his
condition, when he was discharged, and why he could not attend
court the previous afternoon. Nor did defendant move for
reconsideration of the trial court’s ruling. (Concepcion, supra,
45 Cal.4th at pp. 84–85 [“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 voluntary
absence.”].) Finally, in opposing the prosecution’s request to
remand
defendant
for
sentencing,
defense
counsel
acknowledged that defendant’s absence on the second day of
trial “might have been a moment of panic.”
Defendant asserts the trial court erroneously found that he
was voluntarily absent merely because the absence was “self-
induced” based on his drug use. As a general proposition, we
agree with defendant that a defendant who ingests illicit drugs
and subsequently requires medical assistance after trial has
commenced has not, invariably, voluntarily absented himself or
herself. We reaffirm that “[i]n determining whether a defendant
is absent voluntarily, a court must look at the ‘totality of the
facts.’ ” (Gutierrez, supra, 29 Cal.4th at p. 1205; see Espinoza,
20
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
supra, 1 Cal.5th at p. 72.) And it is true that the trial court here
did at times place heavy reliance on defendant’s drug use. But
the record as a whole demonstrates that the trial court did
consider all of the information available and made a factual
finding that, notwithstanding the effects of his drug use,
defendant could have come to court and voluntarily chose not to
do so. Substantial evidence supports that finding.
From the court’s references to defendant’s only partly
explained absence from court at the first trial date in April, his
initial refusal to receive medical attention after medical
personnel were dispatched to his home on the morning of July 6,
and his decision to go to the hospital only after the court advised
him to be in court in 15 minutes, we understand the court to
have been unconvinced that defendant, especially by
9:30 a.m. — more than two hours after medical personnel had
been dispatched to defendant’s home — was truly debilitated
and unable to come to court. That disbelief seems to have played
an important part in the court’s determination that defendant
was voluntarily absent. The circumstance that defendant’s
condition, whatever it was, stemmed from voluntary drug use
certainly also played a significant role. But the record does not
support defendant’s characterization of the trial court’s finding
as resting on an asserted rule that an absence stemming from
drug use is per se voluntary. Indeed if this were so, the court’s
inquiries to and colloquies with counsel, its unsuccessful
advisement to defendant that he be in court in 15 minutes, and
its later spontaneous willingness to recess for nearly three hours
after the prosecution rested its case would likely not have
occurred. Rather, the record as a whole reflects that the trial
court tried to ascertain whether defendant was absent
voluntarily. Put differently, the trial court does appear to have
21
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
considered all the circumstances shown by the evidence before
it, even though it placed substantial emphasis on the apparently
intentional nature of defendant’s drug use.
In sum, viewing the record in the light most favorable to the
trial court’s finding, we conclude that substantial evidence
supports the trial court’s ruling that defendant was voluntarily
absent. Our review of the record as a whole reveals substantial
evidence from which a reasonable fact finder could have found
it highly probable that defendant was aware of the processes
taking place, of his right and obligation to be present, and that
he had no sound reason for staying away.6 Accordingly, we
conclude that the Court of Appeal did not err when it affirmed
the trial court’s finding that defendant was voluntarily absent.7
6
To the extent the dissent suggests that additional
information might have cast a different light on defendant’s
absence, the responsibility to present such evidence lay with
defense counsel.
7
Defendant’s petition for review did not adequately raise
the additional question of whether the trial court abused its
discretion when it denied defense counsel’s motion for a
continuance. (Cal. Rules of Court, rule 8.516(b)(1); Scottsdale
Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 654, fn. 2.
Even if the secondary issue were adequately raised, we are not
compelled to address it and decline to do so here. (Cal. Rules of
Court, rule 8.516(b)(3) [“court need not decide every issue the
parties raise”]; Coast Community College Dist. v. Commission on
State Mandates (2022) 13 Cal.5th 800, 814, fn. 4.
22
PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
We affirm the judgment of the Court of Appeal.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
23
PEOPLE v. RAMIREZ
S262010
Dissenting Opinion by Justice Liu
Defendant Marcos Antonio Ramirez was 19 years old and
had been using heroin for almost a year when he overdosed on
the night before the presentation of evidence was scheduled to
begin in his burglary trial. Police and medical personnel were
dispatched to his home in the morning. After initially declining
medical treatment and telling an officer he would make it to
court, Ramirez instead decided to go to the hospital and received
care at the emergency room.
The trial court concluded that Ramirez was voluntarily
absent from trial that day. Observing that “Ramirez voluntarily
engaged in conduct that resulted in him being absent from his
own trial,” the court decided it would “proceed with this trial in
his absence,” and it denied defense counsel’s request for a
one-day continuance so that Ramirez could be present. The
presentation of evidence began and ended that day without
Ramirez, and the jury convicted him of attempted burglary the
next day.
A criminal defendant has a right to be present at his own
trial under the Fifth and Sixth Amendments to the United
States Constitution. These rights are waived by a defendant’s
absence only if “ ‘it is clearly established that his absence is
voluntary.’ ” (Taylor v. United States (1973) 414 U.S. 17, 19,
fn. 3 (Taylor).) Even if a court finds a defendant voluntarily
absent, it must grant a continuance of trial to allow the
1
PEOPLE v. RAMIREZ
Liu, J., dissenting
defendant to return unless “ ‘the public interest clearly
outweighs that of the voluntarily absent defendant.’ ” (U.S. v.
Latham (1st Cir. 1989) 874 F.2d 852, 857.) To weigh those
interests, the court should assess “ ‘the likelihood that the trial
could soon take place with the defendant present,’ ” “ ‘the
difficulty of rescheduling,’ ” and “ ‘the burden on the
Government.’ ” (Ibid., quoting U.S. v. Tortora (2d Cir. 1972) 464
F.2d 1202, 1210 (Tortora).
I agree with today’s opinion that the trial court should not
have found that Ramirez’s voluntary drug use necessarily
rendered him voluntarily absent from trial. But I cannot agree
that the sparse record before us contains sufficient evidence by
which the trial court could have found it clearly established that
Ramirez voluntarily absented himself from trial under the
correct standard. Nor can I agree that Ramirez has forfeited his
challenge to the denial of his motion for a one-day continuance.
Ramirez raised that argument in the trial court, in the Court of
Appeal, and in his petition and briefing before us, and the
Attorney General has never disputed that Ramirez properly
preserved the issue for our review. Because the trial court erred
by finding Ramirez’s absence voluntary and by denying the
continuance request, and because holding trial in Ramirez’s
absence was prejudicial, I would reverse the judgment.
I.
I agree with today’s opinion that a defendant’s voluntary
ingestion of drugs and subsequent absence from trial as a result
of that drug use are alone insufficient to establish that the
defendant voluntarily waived the right to be present at trial.
(See maj. opn., ante, at pp. 20‒21; see also People v. Bell (2019
7 Cal.5th 70, 114 [a defendant’s waiver of the right to be present
2
PEOPLE v. RAMIREZ
Liu, J., dissenting
must be “knowing, intelligent, and voluntary”].) I do not agree,
however, that the record before us contains substantial evidence
by which the trial court reasonably could have found such a
waiver.
“There can be no waiver of a constitutional right absent
‘an intentional relinquishment of a known right or privilege.’ ”
(People v. Taylor (1982) 31 Cal.3d 488, 497.) Courts must
“ ‘indulge every reasonable presumption against waiver’ of
fundamental constitutional rights.” (Johnson v. Zerbst (1938
304 U.S. 458, 464.) In certain circumstances, defendants may
impliedly waive their rights to be present at trial by voluntarily
absenting themselves. (People v. Concepcion (2008) 45 Cal.4th
77, 82–83.) We look to a defendant’s “purpose in failing to
appear” to determine whether an absence constitutes a
voluntary waiver. (People v. Espinoza (2016) 1 Cal.5th 61, 74
(Espinoza).) For a court to find that a defendant has waived the
right to be present, “ ‘it [must be] clearly established that his
absence is voluntary.’ ” (Taylor, supra, 414 U.S. at p. 19, fn. 3.
Today’s opinion does not address what standard of proof
must be met for the voluntariness of a defendant’s absence to be
“clearly established.” (Taylor, supra, 414 U.S. at p. 19, fn. 3.
Instead, it declines to opine on the question given the parties’
statements at oral argument and “the holdings of numerous
courts” that voluntary absence must be proved by a
preponderance of the evidence. (Maj. opn., ante, at p. 16, fn. 4.
I see no reason to avoid the question. Future courts
deciding whether to proceed in a defendant’s absence would
benefit from our guidance, and there seems to be little dispute
about the standard. Neither party here questions that “clearly
established” means something more than proof by a
3
PEOPLE v. RAMIREZ
Liu, J., dissenting
preponderance of the evidence, and no one claims it requires
proof beyond a reasonable doubt. Ramirez’s counsel suggested
during oral argument that voluntariness must be “clearly and
affirmatively demonstrated.” The Attorney General agreed that
the standard is “something more akin to clear and convincing
[evidence],” and not merely that “the standard was no more
stringent than the ‘clear and convincing evidence’ standard”
(maj. opn., ante, at p. 15, fn. 3). As for the out-of-state cases
applying a preponderance of the evidence standard (maj. opn.,
ante, at p. 16, fn. 4), none of them appear in the briefing before
us, and none discuss the requirement stated in Taylor that the
voluntariness of a defendant’s absence be “clearly established.”
(Taylor, supra, 414 U.S. at p. 19, fn. 3.
Proof by clear and convincing evidence “ ‘requires a finding
of high probability.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 998.) The evidence before the factfinder must be “ ‘ “ ‘so
clear as to leave no substantial doubt’ ” ’ ” and “ ‘ “ ‘sufficiently
strong to command the unhesitating assent of every reasonable
mind.’ ” ’ ” (Id. at p. 998, fn. 2.) We recently concluded that “an
appellate court evaluating the sufficiency of the evidence in
support of a finding must make an appropriate adjustment to its
analysis when the clear and convincing standard of proof
applied before the trial court.” (Id. at p. 1005.) On appeal, we
“must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of
fact could have made the finding of high probability demanded
by this standard of proof.” (Ibid.) “Substantial evidence is
evidence that is ‘of ponderable legal significance,’ ‘reasonable in
nature, credible, and of solid value,’ and ‘ “substantial” proof of
the essentials which the law requires in a particular case.’ ” (Id.
at p. 1006.
4
PEOPLE v. RAMIREZ
Liu, J., dissenting
The record in this case does not contain substantial
evidence by which the court could have found it highly probable
that Ramirez overdosed and went to the hospital for the purpose
of avoiding his trial. As Justice Smith explained in his dissent
from the Court of Appeal’s decision, “[t]here was no evidence
before the trial court as to why, for what purpose, and under
what circumstances, Ramirez ingested the drugs. Ramirez
could very well have taken the drugs to calm himself or to fortify
himself, so as to enable him to attend the proceedings, rather
than in a bid to avoid the trial . . . .” Justice Smith was correct
to observe that because the trial court “did not consider the
question whether, in ingesting the drugs, Ramirez had intended
to waive his constitutional rights to be present at trial and to
testify in his own defense,” and because it did not “hold[] a
hearing to further develop the record,” it “simply did not have
sufficient information to determine whether Ramirez took the
drugs to thwart the judicial proceedings that were underway,
thereby waiving his right to be present, or whether he took the
drugs for other reasons.” (People v. Ramirez (Mar. 5, 2020,
F076126) (dis. opn. of Smith, J.) [nonpub. opn.].
The trial court was aware that Ramirez’s mother had
called police and medical services that morning to report her
son’s overdose. The court emphasized in its ruling that Ramirez
refused treatment offered by the medical responders. However,
as Justice Smith noted, it is unclear “whether Ramirez refused
all forms of assistance from paramedics or merely refused
transport to the hospital by ambulance.” The court also had no
information about “what, and how much, assistance the
paramedics actually rendered.” To the extent today’s opinion
relies on the Tuolumne County Emergency Medical Services
Agency’s policy on a patient’s refusal of treatment or transport
5
PEOPLE v. RAMIREZ
Liu, J., dissenting
(maj. opn., ante, at pp. 18‒19, fn. 5), I note that neither party
cites that policy and the record contains no indication that any
such policy was followed here.
The trial court instructed an officer at the scene to inform
Ramirez that the trial would proceed without him if he was not
at court in fifteen minutes. Ramirez’s initial response was that
he would come. His counsel then asked him over the phone if he
was going to go to the hospital, and he said he wanted to go.
Shortly after that conversation, his mother called defense
counsel to let him know that Ramirez “was nodding out and
being [un]conscious and nonresponsive,” and that “she was
going to try to take him to the hospital.” Ramirez was 19 years
old, had learning disabilities, and was in the midst of a heroin
overdose. The court had no information that indicated whether
Ramirez understood the officer’s warning that he needed to
come to court or whether he was well enough to follow through
on his initial agreement to do so.
Finally, the court noted that Ramirez had missed a day of
trial once before. Several months earlier, when the case was
initially set for trial, Ramirez’s mother reported to the court that
he could not make the first day of trial because he was sick with
the flu. The court continued the trial, and Ramirez’s mother
came the next day with a note from a doctor that said he had
been seen at a local medical center. There was no evidence to
discredit the mother’s report; the record provides no information
from which the trial court reasonably could have concluded that
Ramirez was absent in April because he sought to evade the
proceedings rather than because he simply had the flu.
The totality of the evidence considered by the trial court is
not sufficient to support a finding that it was clearly established
6
PEOPLE v. RAMIREZ
Liu, J., dissenting
Ramirez voluntarily waived his right to be present when he
went to the hospital to be treated for an overdose. As today’s
opinion acknowledges, if Ramirez went to the hospital instead
of court because he “was truly debilitated” (maj. opn., ante, at
p. 21), then he was not voluntarily absent, and his trial could
not lawfully proceed without him. To find him voluntarily
absent under the proper legal standard, the court would have to
have been persuaded that Ramirez was malingering. It would
have to have concluded that Ramirez did not need hospital
treatment and knew as much, but that he chose to go with his
mother anyway for the purpose of evading that day’s
proceedings. The thin record before us does not contain
“ ‘ “substantial” proof’ ” that it was “ ‘highly probable’ ” Ramirez
sought medical care in an effort to avoid his trial.
(Conservatorship of O.B., supra, 9 Cal.5th at pp. 1006, 998,
italics omitted.) Finding Ramirez voluntarily absent was error.
II.
Even if the court were right to affirm the finding of
voluntary waiver, that would not “end our inquiry regarding the
propriety of the trial court’s decision to proceed with the trial”
in his absence. (Espinoza, supra, 1 Cal.5th at p. 75.) “[T]he
decision whether to continue with a trial in absentia . . . rests
within the discretion of the trial court” and is subject to review
for abuse of discretion. (Ibid.) Before deciding to try a defendant
in absentia, “[t]he court must consider the likelihood that the
trial could take place with the defendant present, the difficulty
of rescheduling, the inconvenience to jurors, and the burden on
the government and others.” (U.S. v. Benabe (7th Cir. 2011) 654
F.3d 753, 769.) A trial court “may exercise its discretion to
proceed ‘only when the public interest clearly outweighs that of
the voluntarily absent defendant.’ ” (U.S. v. Bradford (11th
7
PEOPLE v. RAMIREZ
Liu, J., dissenting
Cir. 2001) 237 F.3d 1306, 1313, quoting Tortora, supra, 464 F.2d
at p. 1210.) Given the importance of the constitutional rights at
stake, a trial court that decides to try the defendant in absentia
must make a record adequate to enable review.
The trial court here undertook no such analysis and made
no such record. After finding Ramirez voluntarily absent, the
court declared without further discussion that it was “going to
proceed with this trial in his absence,” and it denied his motion
for a one-day continuance.
I agree with Justice Smith that “[a] continuance was
clearly warranted here.” Nothing in the record supports the
conclusion that the public interest in proceeding that day
outweighed Ramirez’s interest in being present for his trial. The
Attorney General notes that the jurors and witnesses were
present, but there is nothing to suggest that any witness or
evidence would have become unavailable if the trial had been
continued by one day or that a one-day continuance would have
posed a specific hardship to the court, the witnesses, or the jury.
The Attorney General also says the court could not be sure
Ramirez would show up the next day if it granted a continuance.
But no court faced with an absent defendant can be certain the
defendant will return if it grants a continuance. The court here
had no particular reason to believe Ramirez would not be
present the next day, and in fact he did return then.
The only circumstance specific to this case that the
Attorney General has cited for why the public interest favored
proceeding with trial on the day of Ramirez’s absence was that
the prosecutor had plans to be out of town the following
afternoon. But the trial court did not inquire into the
prosecutor’s reason for being out of town and had no evidence
8
PEOPLE v. RAMIREZ
Liu, J., dissenting
from which it could reasonably conclude that the prosecutor’s
interest in being out of town outweighed Ramirez’s interest in
being present for his trial, having the opportunity to testify in
his defense, and confronting the witnesses against him.
Today’s opinion declines to reach this issue on the ground
that Ramirez forfeited his argument that the denial of his
continuance motion was error. (Maj. opn., ante, at p. 22, fn. 7.
Ramirez sought a continuance in the trial court and later moved
for a mistrial after the court proceeded in his absence. He
argued in the Court of Appeal that the denial of his continuance
request was error, and he pressed the claim as well in his
petition and briefing before us. The Attorney General has never
argued that Ramirez forfeited his continuance claim; instead,
the Attorney General contests the claim on the merits in his
briefing and agreed at oral argument that the claim is not
forfeited.
In concluding the issue has been forfeited, the court says
Ramirez did not adequately raise the continuance issue in his
petition for review. While it is true that Ramirez might have
referred to the continuance issue more clearly in his formulation
of the issues presented for review, it is referenced in the two
issues presented by his petition (Cal. Rules of Court,
rule 8.516(b)(1)), and he argues it repeatedly in the petition
elsewhere. Issue No. 1 of Ramirez’s petition for review asks
whether the Court of Appeal erred in affirming the trial court’s
decision to find him voluntarily absent “without conducting an
evidentiary hearing regarding the circumstances of [his]
absence.” One of the reasons his counsel asked for a continuance
was to allow time for that evidentiary hearing. Issue No. 2 asks
whether the violation of Ramirez’s “constitutional right to be
present for trial” was prejudicial error, and the issue of prejudice
9
PEOPLE v. RAMIREZ
Liu, J., dissenting
is informed by whether the trial court properly denied a
continuance.
In any event, Ramirez’s substantive arguments fairly
indicated he was challenging the trial court’s denial of a short
continuance, not just the trial court’s determination that he was
voluntarily absent. Specifically, Ramirez argued in his petition
that the trial court erred by “refus[ing] to continue trial to the
following day” when he did not appear in court. He claimed he
was “deprived of his constitutional right to be present at trial”
when the trial court “determine[ed] that petitioner was
voluntarily absent, without continuing the matter for one day.”
Citing our decision in People v. Gutierrez (2003) 29 Cal.4th 1196,
he argued that “a trial court should not ‘summarily plung[e]
ahead’ with trial in a defendant’s absence.” (Id. at p. 1209.
Forfeiture doctrine serves to prevent unfair surprise to the
other party and to promote the orderly presentation of issues to
the court. (See People v. Gibson (1994) 27 Cal.App.4th 1466,
1468 [“The rule that contentions not raised in the trial court will
not be considered on appeal is founded on considerations of
fairness to the court and opposing party, and on the practical
need for an orderly and efficient administration of the law.”].
Neither concern is present here.
In sum, the continuance issue has been fully briefed, and
I see no sound basis for declining to address it. I would address
the issues properly raised and briefed by the parties, and I
would hold that the trial court abused its discretion by
proceeding in Ramirez’s absence rather than granting his
motion for a one-day continuance so that he could return to
court.
10
PEOPLE v. RAMIREZ
Liu, J., dissenting
III.
An erroneous denial of a federal constitutional right that
does not require automatic reversal is harmless only if we can
conclude beyond a reasonable doubt that it did not affect the
verdict. (Chapman v. California (1967) 386 U.S. 18, 24.) An
error of state law is harmless if it is not “reasonably probable
that a result more favorable to the appealing party would have
been reached in the absence of the error.” (People v. Watson
(1956) 46 Cal.2d 818, 836.) On the record before us, I would
conclude that the trial court’s decision to try Ramirez in
absentia was prejudicial under either standard.
The most substantial pieces of evidence linking Ramirez
to the attempted burglary were a blurry video from a
surveillance camera at the victim’s home in which the burglar’s
face is not visible and the fact that when Ramirez was arrested
five weeks after the crime, he was wearing an Oakland Raiders
hat that appeared similar to one worn by the burglar on the
surveillance tape. Ramirez’s defense consisted largely of the
argument that he was not the person on the surveillance video.
Defense counsel told the jury he would “invite you to look at that
video of the person that’s removing this window screen. I would
submit to you that it’s not my client, doesn’t look like him at all.”
Because the court erroneously proceeded with trial in Ramirez’s
absence, defense counsel had to argue to the jury that Ramirez
was not the burglar on the surveillance video at a time when
Ramirez was not present for the jury to compare his features to
those of the person on the tape.
“ ‘[I]t is only the most extraordinary of trials in which a
denial of the defendant’s right to testify can be said to be
harmless beyond a reasonable doubt.’ ” (People v. Allen (2008
11
PEOPLE v. RAMIREZ
Liu, J., dissenting
44 Cal.4th 843, 872.) This trial was not extraordinary in that
way. In total, the prosecutor called two witnesses, and the
entire presentation of evidence took just over an hour and
occupied roughly 30 pages of the reporter’s transcript. Aside
from the blurry surveillance video and the fact that Ramirez was
wearing a hat five weeks after the burglary with the same
coloring as the one worn by the burglar and the logo of a local
football team, the only evidence presented against him was a
short video of his conversation with police officers when they
arrested him. But, as Justice Smith explained, “Ramirez never
directly admitted he had burgled [the victim’s] house on the
night in question. Initially, Ramirez denied any knowledge of
the incident. . . . After a significant amount of pressing from
[Officer] Bowly, Ramirez said he was probably just looking.
Later, Ramirez said he did not remember the incident. . . .
During the questioning, Bowly never showed Ramirez a picture
of [the victim’s] house or the surveillance tape; nor did he take
Ramirez by the house. Bowly also acknowledged he was not
positive Ramirez knew which incident Bowly was talking
about.” (Italics omitted.) If Ramirez had been able to testify, he
could have explained his equivocal statements to the arresting
officer.
Because Ramirez was absent, the jury had no opportunity
to evaluate the credibility of any argument he might have made
that he was not the person on the surveillance video. Instead,
the defense called no witnesses, and after about six hours of
deliberations, the jury found Ramirez guilty of attempted
burglary. That the jury’s deliberations took four times as long
as the prosecutor’s presentation of evidence further suggests
this was not an easy case. And Ramirez’s testimony would likely
have been significant in light of the limited evidence against
12
PEOPLE v. RAMIREZ
Liu, J., dissenting
him. In sum, there was a reasonable probability of a different
outcome if the trial court had not decided to try Ramirez in
absentia, and the judgment must be reversed.
I respectfully dissent.
LIU, J.
13
PEOPLE v. RAMIREZ
S262010
Dissenting Opinion by Justice Kruger
I agree with the majority opinion, as far as it goes. A
defendant who fails to appear at trial after voluntarily ingesting
illicit drugs is not necessarily voluntarily absent. But as the
majority says, in this particular case there was substantial
evidence to support the trial court’s finding of voluntary absence
under the circumstances.
The majority, however, declines to consider the natural
follow-on question: Whether the trial court should have granted
a short continuance rather than conducting the one-day trial
entirely in the defendant’s absence. I would reach that issue
and I would reverse for the reasons given in parts II and III of
Justice Liu’s dissent.
KRUGER, J.
1
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Ramirez
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 3/5/20 – 5th Dist.
Rehearing Granted
Opinion No. S262010
Date Filed: December 5, 2022
Court: Superior
County: Tuolumne
Judge: James A. Boscoe
Counsel:
Jacquelyn Larson, under appointment by the Supreme Court, and
Jennifer Mouzis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters
and Gerald A. Engler, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Michael A. Canzoneri, Louis M.
Vasquez, Amanda D. Cary, F. Matt Chen and Rachelle A. Newcomb,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Jacquelyn Larson
Central California Appellate Program
2150 River Plaza Drive, Suite 300
Sacramento, CA 95833
(916) 441-3792
Amanda D. Cary
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 705-2305
Opinion Information
| Date: | Docket Number: |
| Mon, 12/05/2022 | S262010 |
