People v. Concepcion, E036353.

• Citation: 141 Cal.App.4th 872,46 Cal.Rptr.3d 457
• Decision Date: 26 July 2006
• Docket Number: No. E036353.,E036353.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ryan Esteban CONCEPCION, Defendant and Appellant.

46 Cal.Rptr.3d 457

141 Cal.App.4th 872

The PEOPLE, Plaintiff and Respondent, v. Ryan Esteban CONCEPCION, Defendant and Appellant.

No. E036353.

Court of Appeal, Fourth District, Division 2.

July 26, 2006.

[46 Cal.Rptr.3d 458]

Terrence Verson Scott, under appointment by the Court of Appeal, and Andrew E. Rubin, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and James D. Dutton, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, J.

I. INTRODUCTION

In this case, we hold that the defendant's involuntary absence from the court-room during the prosecution's presentation of all the evidence offered to support certain criminal charges was structural error, and the defendant's convictions must therefore be reversed.

II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Defendant Ryan Esteban Concepcion was charged with five offenses and related enhancements arising from events that took place on two different dates.

A. July 10, 2003, Events

In early July 2003, defendant visited the home of an acquaintance, Crystal Hall, to look at a gun that her grandmother wished to sell. Defendant, an ex-felon, brought along a friend who had an interest in buying the gun. The Halls showed defendant and his friend the gun. When the Halls were not looking, defendant and his friend left, taking the gun with them. The gun was a collector's item worth about $1,200.

On the basis of those events, defendant was charged in counts 4 and 5 with grand theft (Pen.Code,¹ § 487, subd. (d)) and residential burglary (§ 459). The jury found him guilty of the grand theft, but not guilty of the burglary.

B. July 30, 2003, Events

On July 30, 2003, Hector Lopez and his family were standing outside their home near where his automobile was parked. Defendant, a stranger to the Lopezes, approached, armed with a handgun, and said he needed a ride. When Lopez refused, defendant demanded his car keys. Lopez removed the car key from his keychain and gave it to defendant. Defendant said he would leave the car at an AM/PM market the next day, and he drove away in Lopez's car.

A short time later, a uniformed police officer driving a marked patrol car noticed defendant driving the car without its headlights on. A car chase ensued, which ended when defendant drove the car into a telephone pole. The police found a semiautomatic handgun in the car.

On the basis of these events, defendant was charged in counts 1 through 3 with carjacking (§ 215, subd. (a)), felony flight from a pursuing peace officer (Veh.Code, § 2800.2), and the possession of a firearm by a felon (§ 12021). The jury found him guilty of all three counts and found true the enhancement allegation with respect to count 1 that defendant personally used a firearm (§ 12022.53, subd. (b)).

C. Sentencing

In bifurcated proceedings, the trial court found true allegations that defendant had incurred a prior serious felony conviction for purposes of the five-year enhancement of section 667, subdivision (a), and a prior strike for purposes of section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1).

The trial court sentenced defendant under the two-strike provisions to a 10-year term for the carjacking, a consecutive 10-year term for the firearm enhancement, a consecutive 16-month term for each of counts 2 and 4, a concurrent 16-month term for count 3, and a consecutive five-year term for the section 667, subdivision (a), enhancement, for a total term of 27 years 8 months.

D. The Trial

Jury selection took place on February 11, 2004; defendant was present in court. When the court convened on February 17 for the first day of trial, defendant was absent from the courtroom. Defense counsel reported hearing rumors that defendant and others had escaped from the jail. Defense counsel moved for a continuance or, in the alternative, a mistrial. Defense counsel stated his concern that the jurors would be prejudiced against defendant if they heard of the escape.

The court held a hearing to determine whether defendant was voluntarily absent and learned from a sheriff's deputy that defendant was missing from the jail, and his absence was related to an escape.

The court also conducted individual voir dire of the jurors and admonished them not to guess or speculate as to the reason defendant was not present. The court also admonished the jurors as a group. The court decided to proceed with the trial in defendant's absence under section 1043. The court found that defendant was voluntarily absent from the trial.

After the court gave preinstructions to the jury, the court learned that defendant was back in custody, in Perris. An officer had informed the court that defendant could not be transported back to court until the next day. The court nonetheless continued with the trial. The prosecutor and defense counsel made their opening statements, and the prosecutor presented the testimony of three witnesses to prove the crimes charged in counts 1 through 3.

Defendant was back in court for trial the following day. The court allowed evidence of the circumstances of his escape from jail.

III. DISCUSSION

A criminal defendant has a statutory and constitutional right to be present during such phases of trial as are important to his or her defense unless he or she is voluntarily absent. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; §§ 977, subds. (b)(1) & (2); 1043, subds. (a) & (b); People v. Freeman (1994) 8 Cal.4th 450, 511, 34 Cal.Rptr.2d 558, 882 P.2d 249; People v. Chavez (1980) 26 Cal.3d 334, 357-358, 161 Cal.Rptr. 762, 605 P.2d 401 ["California courts throughout our history have taken note of the `most substantial' nature of the defendant's right to confront witnesses, designating it a `right of the highest importance.'"].) Although defendant was voluntarily absent from trial following his escape from custody, and the trial court so found, his absence ceased to be voluntary once he was returned to custody. When defendant was re-apprehended and taken into custody in Perris, he was again subject to the control of the state. After his re-arrest, therefore, his absence from his trial was involuntary, regardless of the initial voluntariness of his failure to appear in court. We conclude that he therefore had a right to be present at trial, and it was error for the trial court to proceed in his absence.²

Defendant argues that the error was either structural, and hence reversible per se, or, if subject to a harmless error analysis, was not harmless beyond a reasonable doubt under (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705).³ As we discuss below, we conclude that the error was structural, and defendant's convictions must therefore be reversed.

A structural error is a "`defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" (People v. Gray (2005) 37 Cal.4th 168, 233, 33 Cal. Rptr.3d 451, 118 P.3d 496.) In Johnson v. United States (1997) 520 U.S. 461, 468-469, 117 S.Ct. 1544, 137 L.Ed.2d 718, the Supreme Court stated that it so far has found structural error in only six circumstances Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [a total deprivation of the right to counsel]; Tumey v. Ohio (1927) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 [lack of an impartial trial judge]; Vasquez v. Hillery (1986) 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 [unlawful exclusion of grand jurors of the defendant's race]; McKaskle v. Wiggins, (1984) 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 [the right to self-representation at trial]; Waller v. Georgia (1984) 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [deprivation of the right to a public trial]; Sullivan v. Louisiana (1993) 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 [erroneous instruction to the jury on proof beyond a reasonable doubt]. Although not acknowledged by the court in Johnson v. United States, supra, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718, the court also found the equivalent of structural error in Riggins v. Nevada (1992) 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479. In that case, the court held that the trial court had erred in ordering that antipsychotic drugs be administered to the defendant during his trial, and over his objection, without making findings that there were no less intrusive alternatives, that the medication was medically appropriate, and that it was essential for the sake of defendant's safety or the safety of others. In assessing the effect of the error, the court stated, "Efforts to prove or disprove actual prejudice from the record before us would be futile, and guesses whether the outcome of the trial might have been different if Riggins' motion had been granted would be purely speculative." (Id. at p. 137, 112 S.Ct. 1810.)

The common element of all these cases is the courts' recognition that the consequences of the deprivation of certain constitutional rights were "necessarily unquantifiable and indeterminate." (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282, 113 S.Ct. 2078.) Similarly, in Arizona v. Fulminante (1991) 499 U.S. 279, 306-311, 111 S.Ct. 1246, 113 L.Ed.2d 302, the seminal case in which the court announced the dichotomy between structural errors requiring reversal and mere trial errors, which could be subject to harmless error review, the court focused on whether it was possible to determine accurately the impact of the error on the outcome of the proceeding.

When a defendant is absent during the taking of testimony against him, we cannot know what he would have said or done. We cannot determine how the demeanor and testimony of witnesses might have changed had the defendant been present and able to participate fully in the process. The error did not involve a de minimis absence;...