Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130039, Arjuna T. Saraydarian, Judge.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant John Lamont McHenry guilty of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The jury also found true that defendant had sustained five prior prison terms (Pen. Code, § 667.5) and one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e), 1170.12). As a result, defendant was sentenced to a total term of 6 years 8 months in state prison. Defendant’s sole contention on appeal is that his waiver of the right to be present at trial was insufficient. We reject this contention and affirm the judgment.
I FACTUAL BACKGROUND
On May 5, 2006, Riverside Police Officer Gavin Lucero was on routine patrol in an area known for narcotics activity when he drove down an alley and saw defendant standing next to a beat up couch. Defendant dropped an object on the ground next to his feet and then immediately raised his hands to his face and cupped them over his mouth. Officer Lucero rapidly approached defendant and saw that the object defendant had dropped was a glass pipe commonly used to smoke rock cocaine.
Officer Lucero arrested defendant. A search of defendant’s jacket pocket revealed a small plastic baggie containing rock cocaine. The substance later tested positive for cocaine base weighing 0.62 grams.
II DISCUSSION
After the court held a hearing on defendant’s Marsden motion (which was denied) but before jury selection, defendant informed the court that he wanted to go back to his jail cell. When the court inquired why, defendant responded, “Because I don’t want her representing me, and I would just rather let the proceedings go on. That’s all I want. I don’t want her representing me, so I would rather just sit in the holding cell.”
People v. Marsden (1970) 2 Cal.3d 118.
The court then asked defendant if he wanted to waive his presence. Defendant answered, “I want to waive my presence because --.” The court interrupted and asked, “You want her to act without you being here?” Defendant responded, “Yeah,” because of his “attorney’s presence and because of the conflict, your Honor, I would rather go into the --.” The court then asked the deputy if there was a monitor in the holding cell. The deputy responded in the negative.
The court inquired whether a monitor could be installed. The deputy noted that they could call someone to install a monitor, but it would have to be secure so it could not be moved. The court then stated, “He has the right to waive his presence. [¶] Okay. You can put him back there.”
Defendant’s counsel objected, acknowledging that defendant had the right to waive his right to be present in the courtroom but objecting to placing him in a holding cell, which would prevent him from hearing or seeing what was occurring at trial. The court began stating, “If he wants to do that --,” before defendant interrupted by saying, “It’s fine, your Honor, because I have a conflict with her. It’s fine. I would rather not....” The court then asked, “You don’t want to hear what is going on?” Defendant replied, “Actually, I would rather go back to my cell in Southwest.” The court again asked, “You don’t want to hear what is going on?” Defendant answered, “No sir. And just do a sentencing.” After defendant left the courtroom, the court noted, “The record will indicate that the defendant has asked the Court to be absent... from his trial and all the proceedings and also has asked not to view or hear the proceedings.”
The following day, defendant was back in court and requested not to be dressed out. The court reminded defendant that he had not wanted to be present or listen to the proceedings on a monitor. It further stated that it honored that request and picked a jury in his absence. It advised defendant that he had the opportunity to be present to advise his attorney and confront the witnesses against him. It explained that it would be to defendant’s advantage to be present so that the jury would have a person to relate to and for him to observe the witnesses and hear the testimony. Defendant again pointed out his conflict of interest with his deputy public defender and sought to remain in his cell, but requested that he be provided with the trial transcripts and a print-out pertaining to his case. The court offered defendant other alternatives, including permitting him to sit behind his lawyer, and tried to persuade defendant to remain in court to watch the proceedings. Defendant repeatedly said he would rather sit in his cell. In conclusion, the court stated, “I want to let you know that anytime you want to change your mind, you’re welcome to do that. If you want to change your mind and come in at any time, you let the deputies know, and we’ll do it.” Defendant indicated that he understood and left the courtroom.
During Officer Lucero’s testimony, defense counsel agreed to stipulate to defendant’s identification so long as the officer identified defendant outside the presence of the jury. The officer identified defendant. At that time, the court again asked defendant if he wished to come back to the court and participate. Defendant said he did not, nor did he want to speak to or sit with his attorney, and indicated that he preferred to sit in his jail cell.
At the conclusion of the People’s case, the court brought defendant out to ask if he would like to testify. Defendant indicated that he would not. Defendant was not present for the remainder of the trial or the trial on his prior convictions, but he was present for sentencing.
Defendant concedes that under current California law, “the trial court’s actions when discussing [defendant’s] right to be present at the trail were satisfactory and sufficient.” However, defendant asserts that a recent case from the United States Supreme Court, Giles v. California (2008) ___U.S. ___ [128 S.Ct. 2678, 171 L.Ed.2d 488] (Giles), places the California “rule regarding how to take such a waiver in doubt.”
We apply a de novo standard of review to the trial court’s exclusion of a criminal defendant from all or part of trial. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) If the exclusion is deemed improper, defendant bears the burden of demonstrating that proceeding in his absence resulted in prejudice or impaired his ability to receive a fair trial. (People v. Hines (1997) 15 Cal.4th 997, 1039.)
Both the federal and state Constitutions and the state Legislature recognize and protect a criminal defendant’s right to be present at trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Pen. Code, §§ 977, subd. (b) & 1043, subds. (a) & (b).) However, this right is not absolute. (Gutierrez, supra, 29 Cal.4th at p. 1202.) In a noncapital, felony case, “a trial court may continue a trial in a custodial defendant’s absence after the trial has commenced in the defendant’s presence — without first obtaining the defendant’s written or oral waiver of the right to presence — if other evidence indicates the defendant has chosen to be absent voluntarily.” (Id. at p. 1206.) To hold otherwise would allow a voluntarily absent criminal defendant to “‘frustrat[e] the orderly processes’” of his trial. (Id. at p. 1205.)
To determine whether a criminal defendant’s absence is voluntary, a court must consider the totality of the facts. (People v. Gutierrez, supra, 29 Cal.4th at p. 1205.) Consent to proceed in the defendant’s absence does not require explicit oral or written consent; rather, it may be inferred from a defendant’s actions. (Id. at p. 1206.) While a judge need not confront a defendant in the courtroom or move proceedings to the lock-up to secure a proper waiver, the court should take reasonable steps to confirm that the absence is a result of defendant’s own choice. (Id. at pp. 1205-1206.) In arriving at such a conclusion, a judge may “rely on reliable information, such as statements from jail or court personnel....” (Id. at p. 1205.) Otherwise, dragging an “unwilling and uncooperative defendant” into court could pose a risk of injury to the defendant and his handlers or result in prejudice if the defendant feels compelled to disrupt the proceedings. (Id. at p. 1208.)
As defendant acknowledges, his waiver in this case was valid under the reasoning in Gutierrez. He argues, however, that after the decision in Giles, the California waiver rule is “no longer valid.” He appears to claim that under Giles, general waivers are insufficient; rather, the court should give warnings similar to those given when a defendant enters a guilty plea.
Defendant’s reliance on Giles is misplaced. In Giles, the defendant shot and killed his ex-girlfriend. The defendant claimed he acted in self-defense. The prosecution sought to introduce statements made by the victim to police officers three weeks before her death in connection with a domestic violence report. The trial court admitted the statements into evidence under a provision that permitted admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. The defendant was convicted of first degree murder. (Giles, supra, 128 S.Ct. at pp. 2681-2682.)
The United States Supreme Court considered whether the theory of “forfeiture by wrongdoing” accepted by the California Supreme Court — that is, that the defendant forfeited his right to confront a witness who was unavailable because he murdered the witness — is a founding-era exception to the confrontation right. (Giles, supra, 128 S.Ct. at p. 2682.) Forfeiture by wrongdoing is an equitable doctrine based on the principle that “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” (Davis v. Washington (2006) 547 U.S. 813, 833 [126 S.Ct. 2266, 165 L.Ed.2d 224].)
In Giles, the high court clarified that the forfeiture by wrongdoing exception applies only where the defendant “engages in conduct designed to prevent the witness from testifying.” (Giles, supra, 128 S.Ct. at p. 2683.) For example, where the evidence indicates the defendant’s motive for murder was “to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution,” her prior statements about domestic violence would be admissible under the forfeiture doctrine. (Id. at p. 2693.) It concluded that at common law “unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying--as in the typical murder case involving accusatorial statements by the victim--the testimony was excluded unless it was confronted or fell within the dying-declaration exception.” (Id. at p. 2684.) The court added that the rule propounded by the California Supreme Court was not recognized at common law and not established in American jurisprudence. (Id. at p. 2687.)
Our Supreme Court has recently rejected the application of Giles in similar circumstances. In People v. Concepcion (2008) 45 Cal.4th 77, the court stated, “Giles is inapposite. An appellate decision is authority only for the points actually involved and decided. [Citation.] Giles did not remotely address the question whether a defendant impliedly waives his right of presence by voluntarily absenting himself from trial. [¶] Giles involved an application of the hearsay rule and how the principle of forfeiture by wrongdoing mentioned in Crawford v. Washington (2004) 541 U.S. 36, 158 L.Ed.2d 177, 124 S.Ct. 1354 would be interpreted. The question in Giles was whether that equitable doctrine applied where the defendant was on trial for murder and the alleged wrongdoing making the witness unavailable was the murder of that witness. [Citation.]” (Id. at pp. 82-83, fn. 7.)
We find defendant’s reliance on Giles inapposite. We do not interpret Giles as invalidating the California waiver rule on the right of presence at trial enunciated in Gutierrez. The mandates of Gutierrez were clearly followed here, and defendant does not dispute otherwise. The record clearly demonstrates here that defendant knowingly, intelligently, and voluntarily waived his right to be present at trial.
III DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.