People v. White

• Decision Date: 14 June 1971
• Docket Number: Cr. 986
• Citation: 18 Cal.App.3d 44,95 Cal.Rptr. 576
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Garvin Dale WHITE, Defendant and Appellant.

Page 576

95 Cal.Rptr. 576

18 Cal.App.3d 44

PEOPLE of the State of California, Plaintiff and Respondent, v. Garvin Dale WHITE, Defendant and Appellant.

Cr. 986.

Court of Appeal, Fifth District, California.

June 14, 1971.

[18 Cal.App.3d 46] Wild, Christensen, Carter & Blank, Robert G. Carter and George A. Carter, Fresno, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Edsel W. Haws and Gary Allon Larson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEORGE A. BROWN, Associate Justice.

Garvin Dale White was convicted by a jury on nine counts contained in an indictment charging violation of various sections of the Health and Safety Code involving dangerous drugs. (Health & Saf.Code §§ 11912, 11911, 11530.5, 11500 and 11910, and conspiracy to violate Health & Saf.Code § 11912 in violation of Pen.Code § 182.) He seeks reversal of the subsequent judgment entered thereon by reason of claimed undue restriction by the trial court upon his effort to impeach the police informant by cross-examination and the refusal of the trial court to declare a mistrial due to appellant's voluntary absence during the last three days of the five-day jury trial and his absence at the time of pronouncing judgment.

The purport of appellant's first complaint is that the court permitted the prosecution to portray the undercover agent, Clinton Beeler, in a false image of uprightness, integrity and truthfulness, by permitting reference to him by the prosecution and prosecution witnesses as a deputy in the sheriff's office, and, thereafter, unduly restricting the defense from developing that he was not a person with the character of a regular deputy sheriff, but was in fact a thief, a narcotics addict, and a pimp, who sold the services of his wife. During the testimony of the state narcotics agent, Beeler was referred to as a 'reserved deputy sheriff,' or as 'Deputy Beeler.' In addition, the district attorney asked the questions of Mr. Beeler and received the answers set forth in the margin. ¹

During the course of a lengthy cross-examination, appellant's counsel asked the question set forth in the margin ² to which an objection, as indicated, was sustained. Appellant claims it was prejudicial error for the court to have sustained the objection to this specific question.

Certainly, the defense should, under such circumstances, be permitted to go into the employment background of the informant and develop that he might not, in fact, have been a deputy sheriff or that he had or had not, in fact, been given that title. He should have been allowed to develop the purpose and scope of his training and work for the sheriff's department.

In this instance, however, defense counsel did not rephrase the question or pursue the matter. Additionally, it appears that the specific inquiry was answered by the direct examination set forth in footnote 1. Furthermore, a review of the transcript makes it evident that the lengthy and intense line of questioning upon cross-examination developed his past work association with the appellant, his marital problems, and his very recent contacts with and employment by the sheriff's department as an undercover informant, and that the primary reason for his employment was his ability to contact people who were involved in the nefarious business of dealing in contraband. Nothing appears to suggest that the trial judge would not have permitted a wider scope of inquiry into these areas had the defendant desired to pursue the same. Taking the testimony as a whole, we are of the opinion that the jury could have arrived at no conclusion other than that Mr. Beeler was not circumfused by the aura of respectibility that accompanies employment as a regular deputy sheriff.

The court did, in fact, correctly admit opinion testimony that the informant's reputation for truth and veracity was bad. (Evid.Code § 786.) However, the court properly sustained an objection to an offer of proof that the informant was a pimp, thief, a narcotics addict, and that he sold the services of his wife, as specific instances of conduct are inadmissible to attack or support the credibility of a witness. (Evid.Code § 787; People v. Swayze, 220 Cal.App.2d 476, 494, 34 Cal.Rptr. 5.)

Appellant was not in custody during the trial. On the morning of the third day of trial appellant failed to appear. That afternoon the court continued the matter until the following morning and, during the recess, extensive search for and inquiry as to the whereabouts of the defendant were made. He could not be located. The conclusion is inescapable that the appellant had voluntarily absented himself, and no contention to the contrary is made by appellant. Appellant's counsel made a motion for a mistrial, which was denied. The case, thereupon, continued, in the absence of the appellant, for two additional days to its conclusion. Twenty days later, and still in the absence of the appellant, the court denied probation and rendered judgment sentencing him to state prison for the term prescribed by law. Appellant's counsel at that time informed the court that he had no knowledge of appellant's whereabouts.

On May 6, 1970, ten days after the pronouncement of judgment, the appellant, after being taken into custody, appeared before the court with his counsel and stated, among other things, 'I did leave on my own accord.'

We have concluded that by voluntarily absenting himself, the appellant waived his right to be present during the trial and sentencing. As the court in People v. Anderson, 6 Cal.App.3d 364, 85 Cal.Rptr. 669 (2d Dist.) arrived at an opposite result on facts indistinguishable from those in the case at bench, we feel constrained to set forth in some detail the basis of our conclusion.

The California Constitution, article I, section 13, provides in part:

'In criminal prosecutions, in any court whatever, the party accused shall have the right * * * to appear and defend, in person and with counsel * * *.'

At the time of the trial here involved, Penal Code section 1043 states:

'(a) The defendant in a felony case must be personally present at the trial. If he fails to appear at any time during the course of the trial and before the jury has retired for its deliberations, or the case has been finally submitted to the judge, and after the exercise of reasonable diligence his presence cannot be procured, the court shall declare a mistrial and the case may be again tried. Nothing in this subdivision shall limit the right of a defendant to waive his right to be present in accordance with the provisions of Section 977.' ³

In People v. Rogers (1957) 150 Cal.App.2d 403, 309 P.2d 949, written by Mr. Justice Peters during his tenure as Presiding Justice of the Court of Appeal, First Appellate District, the defendant, an attorney, who was representing himself, became mentally disabled to proceed by reason of a self-administered over-injection of insulin during the course of a trial, which he claimed caused him to be in shock and too sick to proceed. The court found, upon medical testimony, that the condition may have been feigned, and, even if genuine, the defendant could have simply and readily corrected the condition by eating lunch. This the defendant refused to do. The trial court denied a motion for a continuance and proceeded to try the case to its conclusion. The appellate court defined the issue as:

'It is whether this voluntary 'mental absence' of the defendant at the conclusion of his trial was a violation of defendant's constitutional and statutory right to be 'present' when his case was tried. This, in turn, depends upon whether a defendant in a felony case can waive his right to be mentally present at his trial by voluntarily absenting his mental self after the trial has commenced.'

(P. 413, 309 P.2d p. 956.)

The majority rule in the United States is that in a noncapital case the defendant is deemed to have waived his right to be present by voluntarily absenting himself after the trial has commenced. (Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500; People v. Welsh (1964) 42 Misc.2d 296, 248 N.Y.S.2d 14, 21 Am.Jur.2d §§ 284, 286.) Diaz was cited and relied upon in the recent case of Illinois v. Allen (Mar. 1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, which authorized the expulsion of a disruptive defendant from the courtroom and the continuation of the trial in his absence. While People v. Rogers, Supra, 150 Cal.App.2d 403, 309 P.2d 949, recognizes that California may have adopted the minority rule in the enactment of Penal Code section 1043, nevertheless, it expressly holds that the right to be present can be waived. We do not presume to be able to improve upon the well-reasoned expression of the court in that case, setting forth the basis of its conclusion. Accordingly, we quote from pages 414--415, 309 P.2d page 956:

'* * * But this does not mean that section 1043, under no circumstances, can be waived. There are other Penal Code sections that permit important steps to be taken in a felony case where the defendant voluntarily absents himself. Thus, under proper circumstances, a verdict can be received in the absence of the defendant (Pen.Code, § 1148), and judgment may, in a proper case, be pronounced in the defendant's absence (Pen.Code, § 1193). Moreover, although viewing the scene of a crime by the jury is in effect taking evidence, in People v. Mathews, 139 Cal. 527, 73 P. 416, it was held that the right of a defendant to be present at such viewing could be waived by a failure to request to be present. There are other cases holding that defendant's right to be physically present at his trial on a felony charge is not an absolute right, and that, if the proceedings taken in his absence did not prejudice him, it is not prejudicial error. (People v. Isby, 30 Cal.2d 879, 186 P.2d 405; People v. Trubschenk, 134 Cal.App.2d 796, 286 P.2d 436; see Pen.Code, § 1181, subd....