People v. Gutierrez

• Decision Date: 06 March 2003
• Docket Number: No. S102162.,S102162.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raul Gomez GUTIERREZ, Defendant and Appellant.
• Court: California Supreme Court

130 Cal.Rptr.2d 917

29 Cal.4th 1196

63 P.3d 1000

The PEOPLE, Plaintiff and Respondent, v. Raul Gomez GUTIERREZ, Defendant and Appellant.

No. S102162.

Supreme Court of California.

March 6, 2003.

Rehearing Denied May 14, 2003.

Certiorari Denied October 14, 2003.

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

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.

Certiorari Denied October 14, 2003. See 124 S.Ct. 406.

CHIN, J.

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.

Factual and Procedural Background

Defendant Raul Gomez Gutierrez, along with codefendant Elisaldo Abrego, was 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, [f] 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 judge, I'm sure that gentleman will bring you right now and let you talk to the judge.

"[Defendant:] To talk about what?

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

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

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

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

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

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 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, 94 Cal.Rptr.2d 396, 996 P.2d 46.)

A criminal defendant's right to be present at trial is protected under both the federal and state Constitutions. (U.S. Const, 6th & 14th Amends.; United States v. Gagnon (1985) 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486; Cal. Const, art. I, § 15; People v. Waidla, supra, 22 Cal.4th at p. 741, 94 Cal.Rptr.2d 396, 996 P.2d 46.) "The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation], but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him." (United States v. Gagnon, supra, 470 U.S. at p. 526, 105 S.Ct. 1482.) Our state Constitution guarantees that "[t]he defendant in a criminal cause has the right ... to be personally present with counsel, and to be confronted with the witnesses against the defendant." (Cal. Const, art. I, § 15.)

Sections 977 and 1043 implement the state constitutional protection. (People v. Douglas (1990) 50 Cal.3d 468, 517, 268 Cal.Rptr. 126, 788 P.2d 640, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4, 269 Cal. Rptr. 269, 790 P.2d 676.) Section 977, subdivision ...