People v. Vargas

• Decision Date: 09 December 1975
• Docket Number: Cr. 13535
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond VARGAS, Defendant and Appellant.

Page 88

126 Cal.Rptr. 88

53 Cal.App.3d 516

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond VARGAS, Defendant and Appellant.

Cr. 13535.

Court of Appeal, First District, Division 1, California.

Dec. 9, 1975.

Sheldon Portman, Public Defender, Frank D. Berry, Jr., Deputy Public Defender, John Nadon, W. Randolph Smith, Bar Certified Law Stu. County of Santa Clara, San Jose, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Charles R. B. Kirk, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment of conviction sentencing him to state prison for furnishing a restricted dangerous drug in violation of former section 11912 (now § 11379) of the Health and Safety Code. ¹ The defendant, who absented himself from his trial on July 15, 1971, was not sentenced until after he was apprehended and taken into custody in February 1974, some 31 months later. He now contends that his conviction must be reversed (1) because the trial court erred in proceeding with the trial in his absence; (2) because he was denied the effective assistance of counsel who, he alleges, violated the privileged confidential relationship with defendant by revelations to the court in connection with the court's determination to proceed, and who failed to interpose proper objections to incompetent, irrelevant and prejudicial evidence offered by the prosecution; and (3) because the court erred in giving instructions on flight and with respect to the quantity of a restricted drug that was usable. He further asserts that the trial court abused its discretion in failing to grant him probation, and that the provisions of section 11912 (now § 11379) which require imprisonment for a period of not less than three years before the defendant is eligible for parole are unconstitutional.

On review no merit is found in defendant's attack on his conviction. We do conclude that, as applied to the facts in this case, the provisions of the Health and Safety Code which fix a 36-month requirement of imprisonment before eligibility for parole are unconstitutional insofar as they exceed the 20 months required under the provisions of section 3049 of the Penal Code.

At about 3 p.m. on Monday, April 5, 1971, the first day of her Easter vacation, Leigh Daly, a 13-year-old eighth grade junior high school student, was walking from a radio station in Santa Clara County to her grandmother's home. While taking a shortcut through a vacant lot she stopped to light a cigarette. Because of the wind she stepped behind a tree, but was still unsuccessful in lighting the cigarette and ran out of matches. She noticed a man watching her from a white car. As she started to walk away he approached her and asked her if she needed a light. Miss Daly lit her cigarette from a burning one he handed her. As she returned his cigarette, he pressed some folded tissue paper into her hand and said, 'Here baby, drop some whites.' She tried to hand them back, saying she didn't need them, and he offered her a ride to wherever she was going. She refused, thanked him for the light, and walked away. Glancing at what was pressed in her hand, she saw yellow tissue but didn't see what was inside. She saw the man getting back into the car.

Miss Daly took down the license number of the car, UYJ 932. It was a Riviera. She remembered the man wore a T-shirt, jeans, boots, and appeared to be of Spanish descent. He had a mole on his left cheek.

After the incident, Miss Daly went to her grandmother's house, which was four blocks away. She told her grandmother what had happened and asked her to call the police because she thought the tissue paper might contain drugs. She opened the paper and found that it contained three double scored pills. The police were called.

Investigating police officers traced the license number of the suspect's car and arrested him as he was leaving work after midnight. At the trial Miss Daly and the investigating officer identified a photograph of the defendant as the man involved. Analysis by a criminologist showed that the pills contained amphetamine. Other evidence is referred to below where pertinent.

I

Defendant's trial commenced on July 14, 1971, and he was present throughout the proceeding on that day. After the completion of the selection of a jury the court ordered the case continued to 9:30 a.m. the following day for the commencement of the presentation of evidence. On the following morning the defendant was not present in the courtroom, and at 9:55 the court consulted with the attorneys, secured certain admissions from defendant's counsel, and over his objection ordered the case to proceed. ² After the People rested their case defendant's counsel objected to being required to proceed in his client's absence. He reported to the court that he had been unable to contact his client and requested a continuance of a week to find the defendant. Out of the presence of the jury the prosecuting witness' mother testified that she had seen the defendant at the preliminary hearing and that she saw a man she thought was the defendant running through the parking lot of the courthouse after 9 a.m., and before the court session was to begin. Defendant's attorney repeated under oath the substance of the statement he had given when the defendant's absence was first noted. The court denied the motion for a continuance and ordered that the case proceed. The defense rested without presenting any evidence, and the jury returned its verdict the same day.

On August 5, 1971, defendant was still at large. It was suggested that defendant was in Mexico. Sentencing was postponed until he could be apprehended. His bail was ordered forfeited January 25, 1972. Defendant was arrested on February 11, 1974, over two and one-half years after his trial. A few days later defendant's retained counsel withdrew from the case, and the public defender was appointed to represent him. Defendant told the probation officer that he fled on his counsel's advice, but when his former attorney stated to the contrary at a hearing on the matter, and reiterated his version of the preflight discussion with defendant, ³ the defendant did not challenge the attorney's statement. Subsequently the court denied defendant's motion for a new trial other than to reduce the offense. (See fn. 1 above.)

,2] As pointed out by the defendant, the right of one charged with a crime to be present at his trial is established by constitutional provisions. (See U.S. Const., Amend. VI; Illinois v. Allen (1970)397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353; Cal.Const., art. I, § 15 (cf. former § 13); Pen.Code, § 1043, subd. (a).) ⁴ It is also established that a waiver of a constitutional right will not be presumed or lightly inferred. (See Johnson v. Zerbst (1938) 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; In re Tahl (1969) 1 Cal.3d 122, 127, 81 Cal.Rptr. 577, 460 P.2d 449, cert. den. (1970) 398 U.S. 911, 90 S.Ct 1708, 26 L.Ed.2d 72, and Pen.Code, § 977.) Defendant recognizes that subdivision (b) of section 1043 of the Penal Code permits a trial in absentia in a noncapital case when 'the defendant is voluntarily absent.' The thrust of his argument is that the court acted precipitously and on insufficient evidence in determining, at the time defendant's absence was discovered and at the conclusion of the People's case, that the defendant's absence was voluntary. He asserts that the statements and testimony of defense counsel at the trial should have been disregarded because the attorney-client privilege was violated by the attorney, and, alternatively, if such statements and testimony are to be considered there was a constitutionally inadequate representation by counsel. (See part II below.) He insists that the court should have adjourned temporarily to allow counsel or law enforcement personnel to locate the defendant, or that it should have declared a mistrial to await the defendant's arrest and return.

While the question of the sufficiency of the showing on which the court acted to find that the defendant's absence was voluntary has a certain academic interest, it is obvious on the entire record that any error in the court's action on July 15, 1971, was not the cause of any prejudice to defendant, because the whole record reflects that any procrastination or delay in proceeding would have been unavailing, and that in fact the defendant's absence was not only voluntary but prolonged. To require a new trial under the circumstances of this case would put a premium on flight, and nullify the provisions of subdivision (b) of section 1043. In People v. Connolly (1973), 36 Cal.App.3d 379, 111 Cal.Rptr. 409, the court observed that the question of why is the defendant absent 'can rarely be answered at the time the court must determine whether the trial should proceed. Consequently, in reviewing a challenge to the continuation of a trial pursuant to Penal Code section 1043, subdivision (b)(2), it must be recognized that the court's initial determination is not conclusive in that, upon the subsequent appearance of the defendant, additional information may be presented which either affirms the initial decision of the court or demands that defendant be given a new trial. It is the totality of the record that must be reviewed in determining whether the absence was voluntary.' (36 Cal.App.3d at p. 385, 111 Cal.Rptr. at p. 412. See also People v. Malloy (1974) 41 Cal.App.3d 944, 954, 116 Cal.Rptr. 592; Taylor v. United States (1973) 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174, and Cureton v. United States (1968) 130 U.S.App.D.C. 22, 396 F.2d 671, 676.)

3] The fact that the defendant, who was on bail, and met all of his required court appearances, including the first day of trial at which the jury was selected, and had been present and left, not...