Defendant’s voluntary absence from jury selection does not justify a continuance

THE PEOPLE, Plaintiff and Respondent, v. PAUL HERSOM, Defendant and Appellant. (Cal. Ct. App., Sept. 26, 2024, No. A168129) 2024 WL 4313709, at *1

Summary:  Hersom was convicted by a jury in San Francisco Superior Courtof felony counts of vehicle burglary and being a felon in possession of tear gas and a misdemeanor count of receiving stolen property. Hersom, incarcerated in jail did not appear on the second day of jury selection. The bailiff informed the trial court he had received notice that Hersom refused to be transported, and the court found that Hersom’s absence was voluntary under Penal Code 1043.1. The court denied the parties’ request for a continuance and proceeded with jury selection. Hersom failed to appear the following day and the court continued all further substantive proceedings until he returned. Other than one day of jury selection, Hersom was present for the whole trial.

On appeal, Hersom claims that his constitutional right to be present at a critical stage of the trial was violated. Hersom claims that the trial court lacked sufficient evidence to find that he was voluntarily absent and abused its discretion by not granting the requested continuance.

The record, including further evidence the trial court heard after proceeding with jury selection in Hersom’s absence, contains substantial evidence that Hersom was voluntarily absent on the day in question. The trial court did not abuse its discretion in denying the requested continuance under the factors set forth in People v. Espinoza (2016) 1 Cal.5th 61 (Espinoza).

Hersom was charged with felony counts of second degree vehicle burglary and possession of tear gas by a felon and misdemeanor counts of receiving stolen property and possession of burglar tools. It was also alleged that he was ineligible for probation because he was previously convicted of at least two felonies. The jury acquitted Hersom of possessing burglar tools and convicted him of the remaining three counts.3 It then found true the five previous-felony allegations submitted to it.

Hersom was sentenced to a total term of two years and eight months in county jail, composed of the midterm of two years for vehicle burglary and a consecutive term of eight months for possession of tear gas. The sentence for receiving stolen property was stayed under section 654.

The Trial Court Properly Proceeded with Jury Selection in Hersom’s Absence.

Hersom claims that insufficient evidence supports the trial court’s finding that he was voluntarily absent for the second day of jury selection and that the trial court abused its discretion by denying a continuance to attempt to obtain his presence. We are not persuaded on either count.

The record contains substantial evidence that Hersom was voluntarily absent for jury selection

The federal and state Constitutions protect a criminal defendant’s right to be present at trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Ramirez (2022) 14 Cal.5th 176, 188 (Ramirez).) “Voir dire of prospective jurors is ‘a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present.’ ” (People v. Wall (2017) 3 Cal.5th 1048, 1059.) The right to presence “is not absolute,” and it may be explicitly or implicitly waived. (Ramirez, at p. 188.) If trial has begun in the presence of a noncapital defendant, and the defendant is later voluntarily absent, “ ‘this does not nullify what has been done or prevent the completion of trial, but … operates as a waiver of [the defendant’s] right to be present and leaves the court free to proceed with the trial.’ ”

Section 1043, subdivision (b)(2) (section 1043(b)(2)), provides that a noncapital defendant’s “absence … after the trial has commenced in their physical presence shall not prevent continuing the trial to, and including, the return of the verdict” if the defendant “is voluntarily absent.” (§ 1043(b)(2).) This provision “ ‘ “was designed to prevent [a] defendant from intentionally frustrating the orderly processes of [the] trial” ’ ” by voluntarily failing to appear. (People v. Concepcion (2008) 45 Cal.4th 77, 83.)

In determining whether a defendant is voluntarily absent under section 1043(b)(2), “ ‘ “a court must look at the ‘totality of the facts.’ ” ’ ” (Ramirez, supra, 14 Cal.5th at p. 188.) It “may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence.” (Gutierrez, supra, 29 Cal.4th at p. 1205.) California courts apply a “three-part test” established by the United States Supreme Court, asking whether “ ‘ “it is clearly established” ’ ” that the defendant (1) is “ ‘ “aware of the processes taking place” ’ ”; (2) is aware “ ‘ “of [the] right and of [the] obligation to be present” ’ ”; and (3) has “ ‘ “no sound reason for remaining away.” ’ ” (Ramirez, at p. 188, quoting Taylor v. United States (1973) 414 U.S. 17, 19–20, fn. 3.)

An appellate court reviews a trial court’s finding of voluntary absence for substantial evidence. (Ramirez, supra, 14 Cal.5th at p. 189.) Here,  there is substantial evidence to support a finding that it was highly probable Hersom was voluntarily absent on December 29.

The question why a defendant is absent “can rarely be answered at the time the [trial] court must determine whether the trial should proceed.” (People v. Connelly (1973) 36 Cal.App.3d 379, 385.) When reviewing a decision to proceed with trial despite the defendant’s absence, “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 [the] defendant be given a new trial.” (Ibid.) Thus, the “record as a whole” must be assessed for sufficient evidence of voluntary absence. (Ramirez, supra, 14 Cal.5th at p. 190; Connelly, at p. 385; see People v. Concepcion, supra, 45 Cal.4th at p. 85 [defendant’s burden to identify any evidence undermining initial voluntary-absence determination].)

Hersom argues that when the court denied that motion, “the only substantial evidence of the voluntariness of [his] so-called ‘refusal’ on December 29 was a form that showed his name and the word ‘refused’ on it.” He claims this evidence was insufficient to support a finding that it was “ ‘highly probable’ ” he was voluntarily absent, given that “[t]he evidence on the other side was overwhelming.” (Quoting Ramirez, supra, 14 Cal.5th at p. 190, italics omitted.)8

The sheriff’s department produced an incident report in which Deputy Saephan wrote on December 29 that Hersom “refused court and did not tell [the deputy] why.” Deputy Saephan and other deputies also provided information about the jail’s standard practices tending to prove that an inmate who lost a wristband would immediately receive a new one. Indeed, the trial court could reasonably infer that Hersom did not actually try to obtain a replacement: He testified that he knew the wristband was missing by dinner on December 28, but he did not ask for one then, and jail staff never received the request forms he purportedly submitted later. Even though there was some evidence corroborating Hersom’s story, the court was entitled to rely on the significant other evidence he refused to come to court on December 29. There was substantial evidence from which the court could find it was highly probable Hersom was voluntarily absent that day.

The trial court did not abuse its discretion by denying a one-day continuance.

Under section 1043(b)(2), a trial court may, but is not required to, proceed when a defendant is voluntarily absent. (Espinoza, at p. 75.) Thus, “the decision whether to continue with a trial in absentia under the statute or declare a mistrial rests within the discretion of the trial court,” and is reviewed its ruling for an abuse of discretion. (Ibid.)

Not only did the court inform the jury “that the trial would be proceeding without [the] defendant as permitted by law,” it later instructed the jury both that it should not consider the defendant’s absence for any purpose and that it should not favor either him or the prosecution because of that absence. (Ibid.)

Here,  the court was reasonably concerned about the possibility that Hersom was attempting to manipulate the court and delay the proceedings. Because Hersom was in custody, the court had information that he had “refused,” not just failed, to come to court. He also had not communicated with his trial counsel. Absent any solid indication of a valid excuse for the absence, the court could consider the possibility that Hersom had an improper motive for not appearing.

The trial court was clearly hesitant to send home the prospective jurors, who are often summoned “at great cost and inconvenience” for them. (People v. Granderson, supra, 67 Cal.App.4th at p. 708.) Indeed, by the time jury selection begins, “significant resources (both fiscal and human) have been tapped,” including by assigning a courtroom and personnel to the trial and arranging the schedules of the attorneys, the trial court, and the witnesses. (Ibid.)

Although no error occurred here, jury selection is a critical stage in a criminal trial. Although the violation of the right to be present is not structural error, in many cases it will be difficult to conclude that a defendant’s absence during jury selection was harmless beyond a reasonable doubt. (See People v. Davis (2005) 36 Cal.4th 510, 532.)

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