Opinion
E071460
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. JESUS SERRANO, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV18000143) OPINION APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Jesus Serrano, was charged in San Bernardino County Superior Court with one count of inflicting corporal injury on a cohabitant and a prior strike conviction. (Pen. Code, §§ 273.5, subd. (a), 667, subd. (b), 1170.12, subd. (a).) At trial, defendant, who was out on bail, failed to return to court after a lunch break. The trial court continued the trial until the following morning so defendant could return, but defendant did not show up. Defense counsel informed the trial court that defendant had been apprehended by law enforcement approximately 250 miles away, in Hanford, California. Finding that defendant had voluntarily waived his right to be present, the trial court finished the trial without him, and the jury convicted him as charged.
Defendant contends his conviction must be reversed because the trial court prejudicially erred in finishing the trial in his absence. We find no error and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant slapped the mother of his child, A.H., punched her in the face, grabbed her hair, and knocked her to the ground. A.H. suffered a bloody nose, a hole in her lip that bled profusely, and a loosened tooth. Defendant was charged in San Bernardino County Superior Court with one count of inflicting corporal injury on a cohabitant, the mother of defendant's child. (Pen. Code, § 273.5, subd. (a).)
On the morning of the first day of trial, the prosecution presented its case-in-chief by calling five witnesses. Around noon, after the prosecution rested, the trial court adjourned for a lunch recess and ordered everyone, including defendant, to return at 1:00 p.m.
Defendant, who was out on bail, left the courtroom during the lunch break. When the parties returned from the lunch recess, defense counsel informed the trial court that defendant had not met her after lunch as she had instructed him, and she did not know his whereabouts. Defense counsel explained that defendant's sister, D.S., told her that defendant "jumped out of the car and ran away" during the lunch break. At defense counsel's request, the trial court continued the trial to the following morning, but indicated that the trial would "go forward" without defendant if he did not return.
Defendant did not show up the next morning. Defense counsel told the trial court that she had spoken with a Hanford Police Department (HPD) sergeant, who told her that defendant was in HPD's custody. The sergeant explained defendant had threatened to hurt D.S. if she did not pay for his train ticket to Hanford, where A.H. lived at the time, and told D.S. that he intended to "potentially hurt, beat, or kill" A.H. The sergeant also told defense counsel that HPD had arrested defendant at the Hanford train station for making criminal threats against A.H. and giving a false name to the arresting officers.
Defense counsel asked for a continuance of the trial because defendant wanted to testify, and defense counsel believed defendant could be returned to the court within a week and that the trial could be completed in one day. The trial court found that defendant had willfully failed to appear. The trial court therefore proceeded without defendant because a jury had already been empaneled and it was unlikely that defendant could be returned quickly, particularly given that he faced charges in Hanford. The defense rested, the trial court instructed the jury, and the jury convicted defendant as charged.
III.
DISCUSSION
On appeal, defendant contends the trial court committed reversible, prejudicial error in proceeding with the trial in his absence. We disagree because defendant voluntarily waived his right to be present at the trial and the trial court reasonably exercised its discretion to proceed in his absence.
A. Applicable Law and Standard of Review
A criminal defendant has the right to be present at trial, but may expressly or impliedly waive that right. (People v. Espinoza (2016) 1 Cal.5th 61, 72 (Espinoza).) "Under Penal Code section 1043, subdivision (b)(2), a noncapital felony trial may continue in a defendant's absence, if the defendant was present when trial began, then later voluntarily absents himself." (People v. Concepcion (2008) 45 Cal.4th 77, 79 (Concepcion).)
But the court may proceed only if "'"it is clearly established that [the defendant's] absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away."' [Citations.]" (Espinoza, supra, 1 Cal.5th at pp. 73-74.) If the trial court finds that the defendant voluntarily waived the right to be present at trial, the trial court has discretion to proceed with the trial without the defendant. (Id. at p. 78.)
We review the trial court's finding that defendant voluntarily waived his right to be present at trial for substantial evidence. (Concepcion, supra, 45 Cal.4th at p. 84.) We review the trial court's decision to proceed with trial without defendant for an abuse of discretion. (Espinoza, supra, 1 Cal.5th at p. 75.)
B. Analysis
Defendant argues his conviction must be reversed because (1) he did not know the trial would continue without him, and (2) the trial court's completing the trial in his absence violated his constitutional right to a fair trial. We reject both contentions.
1. Substantial Evidence Supports the Trial Court's Finding that Defendant Voluntarily Waived His Right to Be Present at Trial
A defendant voluntarily waives the right to be present at trial if: (1) the defendant is aware of the trial; (2) the defendant is aware of his/her right and obligation to be present at the trial; and (3) the defendant had "'no sound reason'" for not being present at trial. (Espinoza, supra, 1 Cal.5th at pp. 73-74.) Here, substantial evidence supports the trial court's conclusion that all three factors were present. First, defendant fled in the middle of trial after the prosecution had presented its case-in-chief by calling five witnesses. Second, shortly before defendant fled, the trial court excused the jury so that defendant could consult with his attorney about whether he wanted to testify. When asking for a continuance after defendant failed to return from the lunch break, defense counsel explained that defendant wanted to testify. Third, the only reason defendant was not present during trial was because he fled to Hanford, approximately 250 miles away, to inflict harm on A.H. Accordingly, substantial evidence supports the trial court's finding that defendant voluntarily waived his right to be present at his trial. (Ibid.)
Citing Espinoza, supra, 1 Cal.5th 61, defendant argues the trial court nonetheless erred in proceeding without him because he was not aware the trial would continue in his absence. Espinoza does not stand for this proposition. Nothing in Espinoza (or elsewhere) suggests that the trial court was not allowed to proceed with the trial without defendant because he did not know the trial might proceed in his absence. As Espinoza and several other cases make clear, a defendant may impliedly waive the right to be present at trial by absconding during the trial, as defendant did here. (E.g., Espinoza, supra, 1 Cal.5th at pp. 73-74; Concepcion, supra, 45 Cal.4th at pp. 84-85; People v. Gutierrez (2003) 29 Cal.4th 1196, 1206 [trial court need not obtain defendant's consent to proceed with trial in his absence if defendant voluntarily chose not to be present].) Regardless, it is "wholly incredible" to suggest that defendant, who was on bail and who fled "'from a courtroom in the midst of a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not know that as a consequence the trial could continue in his absence. [Citations.]'" (Taylor v. United States (1973) 414 U.S. 17, 20.)
2. The Trial Court Did Not Abuse Its Discretion When Proceeding With Trial Without Defendant
Because defendant voluntarily waived his right to be present at his trial, the trial court had discretion to proceed without him. (Espinoza, supra, 1 Cal.5th at p.75.) We conclude the trial court did not abuse its discretion in proceeding with the trial in defendant's absence.
The trial court reasonably decided to proceed without defendant given the late stage of the proceedings. (See Espinoza, supra, 1 Cal.5th at p. 78 ["In deciding whether to proceed with the trial, the trial court was also entitled to consider the stage of the trial proceedings."].) At the time defendant fled to Hanford, a jury had been empaneled, five witnesses had testified, and the prosecution had rested. The trial court did not impermissibly and "'summarily plung[e] ahead' with trial," but instead continued trial until the following morning to allow defendant to return. (People v. Gutierrez, supra, 29 Cal.4th at p. 1209.) When defendant did not show up the next morning, the trial court had the discretion to proceed without him because "[d]elaying the trial further would have posed a risk of hardship to the jurors, inconvenience to the witnesses, and disruption to orderly court processes." (Espinoza, supra, at p.78.) Despite proceeding with trial in defendant's absence, the trial court recognized its obligation to ensure defendant's trial was fair by twice instructing the jury that it was not permitted to consider defendant's absence for any reason. (Ibid.)
As in this case, in Concepcion, after the jury had been empaneled and the first morning of evidence had been presented, the defendant fled. (Concepcion, supra, 45 Cal.4th at p. 79.) He was arrested several hours later about 20 miles away, but law enforcement could not return him to court until the following morning. (Ibid.) The trial court nonetheless proceeded in his absence. (Ibid.)
Our Supreme Court affirmed the trial court's decision to proceed without the defendant. (Concepcion, supra, 45 Cal.4th at p. 86.) The Supreme Court noted that the defendant's voluntary absence was undisputed given that "[i]t was his own counsel who first informed the court that he had reportedly escaped." (Id. at p. 84.) The Supreme Court reasoned that, because "an escapee is voluntarily absent from the time he absconds until he can reasonably be returned to court," the defendant remained "voluntarily absent" while in law enforcement's custody. (Id. at p. 84.) The Supreme Court therefore concluded the trial court did not err in proceeding without defendant because a jury had been sworn, his absence was disruptive, and delaying the trial further "would have done . . . a considerable disservice" to testifying witnesses. (Id. at pp. 84-86.)
As in Concepcion, defendant voluntarily fled after the jury had been empaneled, and any further delay would have inconvenienced the jury, the trial court and its staff, counsel, and the testifying witnesses. And, unlike the trial court in Concepcion, the trial court here continued the trial until the following morning, giving defendant the opportunity to return before returning to trial.
Espinoza further establishes that the trial court did not abuse its discretion here. In Espinoza, a jury was empaneled and one prosecution witness testified before court adjourned for the day. (Espinoza, supra, 1 Cal.5th at p. 69.) The defendant did not appear the next morning. (Id. at p. 70.) The trial court therefore continued the trial to the next day. (Ibid.) When the defendant did not show up the next day, the trial court found that he had voluntarily waived his right to be present at trial and proceeded through conviction without him. (Ibid.)
The California Supreme Court held that the trial court did not err. (Espinoza, supra, 1 Cal.5th at p. 79.) The Supreme Court reasoned that the trial court was "entitled to consider the stage of the proceedings," specifically, that the "prosecution was ready to proceed when defendant disappeared." (Id. at p. 78.) The Supreme Court also noted that the trial court did not "rush to proceed with trial," but instead continued it for a day so that the defendant could be located. (Ibid.) Finally, the trial court honored its duty to "ensur[e] that criminal trials are fair and accurate" by instructing the jury that it could not consider the defendant's absence for any purpose. (Ibid.)
Here, defendant fled to Hanford after the prosecution had rested and after five witnesses testified, not just one, as in Espinoza. When he failed to do so, the trial court resumed the trial and twice directed the jury not to consider his absence for any reason.
Under Concepcion and Espinoza, we conclude the trial court did not err in proceeding with the trial in defendant's absence. By choosing to flee to Hanford, defendant also chose "to present no defense." (Espinoza, 1 Cal.5th at p. 73, citing People v. Parento (1991) 235 Cal.App.3d 1378, 1381.) Because the trial court did not err in going forward with the trial in defendant's absence, we need not address defendant's argument that his absence at trial was prejudicial. (People v. Gutierrez, supra, 29 Cal.4th at p. 1209 [concluding trial court properly proceeded in defendant's absence and declining to address whether doing so was prejudicial]; see also People v. Howze (2001) 85 Cal.App.4th 1380, 1396 [holding that defendant who refused to leave his cell to come to court "is estopped to assert that the trial improperly commenced in his absence"].)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: RAPHAEL
J. MENETREZ
J.