Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS011815
Premo, J.
Defendant Marlon Olivas entered a negotiated plea of no contest to felony receiving stolen property and misdemeanor resisting a public officer. He failed to appear at sentencing because he had been arrested in Nevada. At a sentencing hearing over four years later held in the presence of defendant’s counsel while defendant was in Nevada’s custody, the trial court, consistent with a plea-bargained condition, reduced the receiving conviction to a misdemeanor and imposed one-year sentences. It ran the sentences concurrently with a Nevada sentence of nine to 24 years. On appeal, defendant contends that the trial court transgressed his constitutional right to be present at sentencing. We disagree and affirm the judgment.
Background
Defendant entered his plea in August 2001 but failed to appear for sentencing in November. The Nevada court sentenced defendant in April 2002.
In October 2005, defendant wrote to his attorney (the Monterey County Public Defender) about this case. His attorney replied that sentencing in the case was pending and that he could place the matter on calendar. He asked defendant for certain information and an authorization to appear. He appeared at a sentencing hearing in March 2006, waived defendant’s presence, and agreed to the negotiated sentence.
Discussion
A criminal defendant has a constitutional and statutory right to be present at all critical stages of the proceedings, including sentencing hearings. (U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 15.) Although the right to be present for the commencement of trial arguably cannot be waived (see Crosby v. United States (1993) 506 U.S. 255, 258-262), the right to be present thereafter is waived if (1) the defendant is disruptive (Illinois v. Allen (1970) 397 U.S. 337, 343) or (2) the defendant is voluntarily absent (Taylor v. United States (1973) 414 U.S. 17, 18-20).
In California, Penal Code sections 977 and 1043 implement the right to be present.
Further unspecified statutory references are to the Penal Code.
Section 977, subdivision (b)(1) provides that “[i]n all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present.”
Section 1043 states, in pertinent part: “(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial. [¶] (b) The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] (1) [disruptive behavior] [¶] (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. [¶] . . . [¶] (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977.”
When sections 977, subdivision (b)(1), and 1043 are read together, a felony defendant may be absent from trial (1) under the waiver provisions in section 977, subdivision (b)(1) regarding “all other proceedings,” (2) when the trial court removes him or her for disruptive behavior, or (3) when he or she is voluntarily absent after a trial has begun for an offense not punishable by death. (See also § 1193, subd. (a), fn. 4, post.)
A defendant in a misdemeanor proceeding also has a statutory right to be absent and appear through counsel. (§ 977, subd. (a) [“In all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only . . . .”].) This section, together with section 1043, subdivision (e), require the trial court to proceed with the trial of a misdemeanor defendant if there is a waiver of appearance pursuant to section 977, subdivision (a).
Section 1043, subdivision (e), pertains specifically to “the defendant in a misdemeanor case” and provides that the trial court shall proceed with the trial in the defendant’s absence (unless good cause for a continuance exists) if the defendant has authorized his counsel to so proceed pursuant to section 977, subdivision (a). However, if the defendant has not authorized his counsel to proceed in his absence and fails to personally appear at trial, the trial court, in its discretion, may do one or more of the following: (1) continue the matter; (2) order bail forfeited or revoke release on the defendant’s own recognizance; (3) issue a bench warrant; (4) proceed with the trial if it finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held. Further, the trial court has the right to order the defendant to be personally present at trial for purposes of identification unless counsel stipulate to the issue of identity.
“In construing the statutory right of an accused to be absent from misdemeanor proceedings, case law has recognized that the right is conditional: a defendant who absents himself must do so with full knowledge of the pendency of the criminal proceedings, as the waiver of the right to be present must be a knowing and intelligent one. [Citation.] Further, the court must be certain that the acts of counsel are authorized by the defendant. [Citation.] However, the court can rely upon the representation of counsel that the accused is knowingly absent from the proceedings. [Citation.] In the absence of a statutory requirement that the attorney’s authority be evidenced by a writing, it is always presumed that an attorney appearing and acting for a party has authority to do so. [Citation.] This confidence rests not only upon a belief in the honor and integrity of the attorney, but upon the fact that the attorney is a sworn officer of the court. [Citation.] [¶] Neither section 977, subdivision (a) nor section 1043, subdivision (e) requires the attorney’s authorization to be in writing. Thus, without a strong factual showing to the contrary [citation], the attorney’s representation that he or she is authorized to proceed in the defendant’s absence is sufficient.” (People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 746-747, fn. and italics omitted.)
Defendant contends that his right to be present at sentencing was not waivable because he was “charged” with a felony (§ 977, subd. (b)) in a “felony case” (§ 1043, subd. (a)). He points out that he was charged with a felony in a felony case because a felony case “means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony.” (§ 691, subd. (f).) He reasons that the plea-bargained reduction of the felony conviction to a misdemeanor conviction does not affect this analysis. We disagree.
Defendant overlooks that section 1193, subdivision (b), provides that “If the conviction be of a misdemeanor, judgment may be pronounced against the defendant in his [or her] absence.” This provision speaks of a misdemeanor conviction not a misdemeanor charge or case. Thus, once the trial court had reduced defendant’s felony conviction to a misdemeanor, defendant had a right to be absent as in any misdemeanor case. It follows that defendant’s attorney could appear at sentencing, as he did, and waive defendant’s presence.
The People also overlook this pivotal statute.
The felony companion subdivision, section 1193, subdivision (a), similarly speaks of a conviction. It states that “If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless [the defendant is represented by an attorney, the defendant signs a written waiver, and the trial court approves the absence] . . . .”
Defendant argues that he presented a strong factual showing to counter the presumption that his attorney had authority to proceed in his absence. He relies on a petition for writ of habeas corpus that he prepared and filed before the sentencing hearing in which he sought to withdraw his plea. In the petition, he claimed that he had received ineffective assistance of counsel because counsel had coerced him into pleading guilty rather than pursuing a defense and proceeding to trial.
The record does not reflect any disposition of defendant’s petition. It does indicate that defendant’s counsel asked the trial court to treat the petition as a motion to withdraw the plea. But it does not show any response to the request.
But the trial court was not required to accept that defendant’s petition allegations cast doubt on counsel’s authority to waive defendant’s presence at sentencing. Defendant’s petition sought alternative relief. It asked “to proceed to trial, or in the alternative, seek plea negotiations that are not felonies.” Thus, the trial court could have inferred that defendant objected to a felony conviction and sought to erase the conviction via habeas corpus or sentencing. In this setting, counsel’s authority to negotiate a misdemeanor conviction in place of the felony conviction and waive defendant’s presence at sentencing could be considered manifest rather than questionable.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.