Opinion
C081285
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. DANE HUUSFELDT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F05263)
A jury found defendant Dane Huusfeldt guilty of possession of heroin for sale, and found true a quantity enhancement. The trial court sustained a recidivist allegation, and found defendant had violated his probation in the prior case. It sentenced him to county jail for a split term with a period of mandatory supervision (ordering the termination of probation in the prior matter on the completion of that sentence in January 2016).
On appeal, defendant contends the trial court erred in receiving the jury's verdict in his absence. We shall affirm.
PROCEDURAL BACKGROUND
Given the nature of defendant's sole contention, we omit the factual circumstances underlying his convictions. We confine ourselves to the pertinent procedural details.
Before trial, the court granted defendant's motion to represent himself. In his testimony, defendant asserted he had scoliosis and degenerative disc disease, but was able to walk short distances. As the court observed when it received the verdict, defendant was transported from jail during the trial under the usual protocols for defendants needing a wheelchair, without any objections on his part. When he testified, defendant declined being wheeled to the stand.
The jury began its deliberations on a Friday morning. That afternoon, after about three hours of deliberations, the jury announced its belief that it was deadlocked. The court asked the jury to try a fresh start on Monday morning because it had been a tiring week, and then excused the jury early for the weekend.
After a half-hour of deliberations on Monday morning, the jury announced it had reached a verdict at 9:55 a.m. The prosecutor was present when the court went on the record at 10:35 a.m., and presumably the court had notified defendant of the pending verdict at the same time as the prosecutor. It announced its conclusion that defendant was voluntarily absenting himself, because jail personnel had informed the court that for the first time defendant was insisting on a departure from the transport protocols to which he had previously acceded. The court explained: "[The prosecutor] is here on behalf of the People. Mr. Huusfeldt is not here, and that is by his own choice, in the opinion of the Court. The defendant refused to be transported from the county jail to the courthouse this morning with the standard protocols as it relates to someone who may require the use of a wheelchair. It's the same protocol that has been used by Mr. Huusfeldt, I've been informed by the sheriff[']s department, throughout the course of all last week and prior court appearances. [¶] And, consequently, the Court, in having received word well over 45 minutes ago that our jury had reached a verdict, I am not going to inconvenience our assembled jurors to wait for whenever it might be that Mr. Huusfeldt decides to join us here at the Schaber Courthouse. I am mindful that the sheriff's department is trying to accommodate as best they can his request, however, it's such things as having an inmate available to either drape his arm over the inmate's shoulder to help in some of his being mobile. That obviously is not an accepted protocol." Thus, "we will take the verdict at this time." After the clerk read the verdict, the court asked the jurors if this was their true and correct verdict; all assented. At 11:30 a.m., defendant appeared in court. The court informed him that the jury had returned a guilty verdict, and then sustained the recidivist enhancement. Defendant did not at that time or at any other point before judgment object to the receipt of the verdict in his absence.
Although the record does not expressly recite that the trial court notified either party of the pending verdict, we presume it did so through the jail officials transporting defendant (Evid. Code, § 664), in order to explain why it was necessary to bring defendant to court. --------
DISCUSSION
Defendant contends the present case is distinguishable from People v. Espinoza (2016) 1 Cal.5th 61 (Espinoza), in which a self-represented defendant failed to appear without any explanation after the first day of trial. (Id. at pp. 69-70.) He asserts that he was "trying" to get to court at the time the verdict was received. We disagree.
The right to be present at trial is derived from the constitutional rights of due process and confrontation, and is codified under state law. (Espinoza, supra, 1 Cal.5th at p. 72.) The right is not absolute; it is subject to express or implied waiver. (Ibid.) A trial court looks at the totality of the facts to determine whether an absence is voluntary, which we review for substantial evidence. (Id. at pp. 72, 74.) We review its decision to proceed in absentia for an abuse of discretion. (Id. at p. 75.) A self-represented defendant is charged with the knowledge that a trial will proceed despite the defendant's absence, and is foreclosed from claiming that any prejudice resulted. (Ibid.)
Defendant never asserted in the trial court that he did not have notice of a pending verdict as being the reason for transporting him to court. Contrary to his claim, defendant was not "trying" to get to court; he was suddenly being obstructionist about a transport procedure to which he had previously been amenable, with knowledge that the court proceedings were awaiting his presence. The trial court could properly conclude that it could not determine at that point how insistent defendant was going to continue to be about his sudden preferred manner of transport, or when (if ever) he might yield. It is true that in Espinoza the trial court continued trial for a day, which proved unavailing when the defendant still failed to appear the following day. But Espinoza did not make this fact part of its ratio decidendi in concluding the trial court did not abuse its discretion in choosing to proceed in absentia thereafter, and accordingly we are not obligated to conclude that the present court abused its discretion in failing to wait any longer when it was apprised of the basis for defendant's failure to appear. Defendant's invocation of People v. Gutierrez (2003) 29 Cal.4th 1196, at page 1209, is inapt: the caution against plunging ahead summarily relates to the need to first ascertain that the absence is voluntary, which is not an issue in the present case. Similarly, the caution in People v. Vargas (1975) 53 Cal.App.3d 516, at page 526, against proceeding without at least a continuance of a few hours was again in the context of the need to determine if the absence was voluntary, and ultimately the Court of Appeal did not find an abuse of discretion in the decision to "plung[e] ahead" without waiting any further. Neither do we; the trial court and the jury were not obligated to await defendant's eventual arrival under the circumstances presented.
Defendant alternately asserts that he was "deprived" of counsel at a critical stage in the proceedings. However, it was defendant himself who caused the absence of legal representation, not the court, and as Espinoza holds, he is precluded from claiming any prejudice from his absence.
In any event, a defendant's absence even from a critical stage is not structural error requiring reversal per se; instead, we determine whether it is harmless beyond a reasonable doubt. (People v. Robertson (1989) 48 Cal.3d 18, 62; People v. Powell (2004) 114 Cal.App.4th 1153, 1160.) The sole deprivation that defendant identifies would be his ability to poll the jurors individually as to whether a guilty verdict hard on the heels of a declaration of deadlock represented their true verdict. However, if defendant actually believed that juror coercion took place, he could have taken steps in pro se (or requested appointment of counsel) for a motion for new trial based on evidence to this effect. He did not. We do not reverse a verdict based on speculation. (People v. Gonzales (2012) 54 Cal.4th 1234, 1254 ["speculative" consideration insufficient to establish reasonable doubt that more favorable result for the defendant would have occurred in absence of error].)
DISPOSITION
The judgment is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HULL, J.