Defendant (Presence at Trial)
Category > Defendant (Presence at Trial)
Updated 3/6/2024The trial court erred by conducting a resentencing in defendant’s absence.Defendant was resentenced following a remand with directions to strike an enhancement. However, he was not present at the resentencing and he had a constitutional right to be present since it was a critical stage of the proceedings. Defendant’s absence was not harmless since he might have offered mitigating factors that arose after his original sentencing. id: 26516
Updated 3/4/2024The trial court had jurisdiction to resentence defendant under section 1172.75 even after he filed a notice of appeal.The trial court resentenced defendant and dismissed the prior prison term pursuant to Penal Code section 1172.75. The defense had requested a full resentencing and filed a notice of appeal. Section 1172.75 provides an exception to the general rule and vests the trial court with jurisdiction to conduct a resentencing hearing while an appeal is pending. The case had to be remanded for a new sentencing hearing anyway because defendant was not present at the sentencing hearing and did not validly waive his presence.id: 28153
Updated 2/22/2024Denial of defendant’s section 1172.6 petition was reversed where he was not present at the evidentiary hearing.The trial court held an evidentiary hearing on defendant’s Penal Code section 1172.6 petition and found he was ineligible for resentencing. However, the order was reversed because he was entitled to be present at the hearing, which was a critical stage of the proceedings against him.id: 28105
Updated 2/7/2024The juvenile court erred by denying petitioner’s request to appear in person, as the local rule was in conflict with section 679 and the state’s emergency rules.The Yolo County Superior Court erred by denying the petitioner’s motion to physically appear at his juvenile court proceedings. Welfare and Institutions Code section 679, provides that right although it can be waived by the minor. Also, the emergency rules adopted by the Judicial Council required a minor’s consent before conducting a hearing remotely. The temporary local rules requiring that all juvenile proceedings be conducted remotely absent a showing of good cause were in conflict with section 679 and the state’s emergency rules.id: 27151
Updated 1/31/2024A defendant has a right to be personally present for a Penal Code section 1170.95 evidentiary hearing.The trial court erred by conducting a Penal Code section 1170.95 evidentiary hearing in defendant’s absence. Defendant’s right to be present for the hearing could not be waived by trial counsel.id: 28020
The trial court violated defendant’s due process rights by instructing the jurors that defendant’s refusal to come to court could be considered consciousness of guilt.Defendant refused to come to court, which resulted in a 38 minute delay. The trial court instructed the jurors that they could consider this evidence as tending to prove consciousness of guilt. The instruction violated defendant’s due process right since he made no attempt to elude prosecution or punishment. However, the error was not prejudicial given the strength of the prosecution’s case and the fact that the jurors rejected certain counts.id: 25962
The court erred by allowing penalty phase closing argument for the codefendant while defendant was absent without obtaining a personal waiver. The trial court erred by failing to obtain defendant’s personal waiver before excluding him from the courtroom during the penalty phase closing argument by his codefendant’s attorney. The error was harmless where defendant’s presence would not have impacted the content of his codefendant’s closing argument.id: 25683
A brief comment about defendant’s prior criminality was improper but harmless where the court immediately told the jurors to disregard it.The prosecution introduced a tape recording of a police interview of a witness who commented that defendant had recently been released from prison. Disclosing defendant’s prior criminality to the jury was improper, but the comment was brief, and the court immediately told the jury to disregard it since it was speculative. The court did not err in denying the motion for a mistrial.id: 25543
The trial court erred by refusing the deliberating jury’s request to review exhibits that hadn’t been admitted into evidence without notifying counsel.The trial court’s ex parte communication with the jury who had requested to see exhibits not admitted into evidence violated the defendant’s right to be present at all critical stages of a trial, and his right to counsel. However, the error was harmless where even if the jurors had seen the letter the codefendant had written to defendant, it wouldn’t have impacted the case given all of the oral testimony on the matter.id: 25463
Defendant was denied his right to be present and to counsel where the court resentenced him in his absence following a remand.Defendant was denied his right to counsel and to be present when the court resentenced him in his absence on remand. Because the trial court changed the previously imposed term to his detriment, defendant demonstrated that he was prejudiced by not being permitted to be present and to confer with his attorney.id: 24608
The trial court erred by allowing the trial to proceed in the absence of the pro-per defendant who had not waived several fundamental trial rights.The trial court granted several pretrial Marsden requests before ultimately (during jury selection) granting defendant’s Faretta motion for self-representation. Defendant failed to appear for the second day of trial and the court allowed the trial to proceed in his absence. However, the trial court erred by allowing the trial to proceed because defendant did not knowingly waive several fundamental trial rights. The error was structural requiring automatic reversal. id: 23981
The trial court violated defendant’s right to be present by allowing the bailiff to demonstrate how the murder weapon operated in response to a jury question during deliberations. The trial court erred by allowing the bailiff, without the presence of the defendant, to conduct for the inquiring jury, a demonstration of how the murder weapon operated and answer jury questions about the subject. However, the error was harmless where defendant had been present when the prosecution’s expert presented testimony that was consistent with the bailiff’s presentation.id: 23397
The trial court erred by stationing a courtroom deputy next to the testifying defendant without a case-specific decision regarding the need.Stationing a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice. However, the trial court must exercise its own discretion and determine on a case-by-case basis whether such heightened security is appropriate. The trial court erred here in failing to make a case-specific decision, deferring instead to the generic policy of stationing the deputy at the witness stand. However, the error was harmless under the Watson standard as defendant wore street clothes, the officer’s demeanor was respectful, and the evidence against the defendant was strong. id: 22095
The juvenile court erred by failing to respect the minor’s choice over the fundamental issue of whether to accept the plea offer.The juvenile court prevented the minor from accepting the prosecutor’s plea offer after defense counsel stated a belief that there was no factual basis for the plea. However, the court violated rule 5.778 of the California Rules of Court by failing to respect the minor’s personal choice over a fundamental decision in his case. The case was essentially returned to the previous point of the plea negotiations.id: 22918
he trial court erred by failing to secure a written waiver of defendant’s right to be present after finding his presence would be conditioned on his being shackled.Defendant did not validly waive his right to be present for hardship screening where the trial court conditioned his presence on wearing physical restraints. The court should have secured a written waiver. However, defendant failed to show prejudice as the jurors were preoccupied with filling out questionnaires and the jurors were told defendant would be present for all future proceedings.id: 22837
The trial court abused its discretion in having a deputy escort defendant to the witness stand and remain nearby while he testified.At defendant’s indecent exposure trial, a deputy sheriff accompanied defendant from the defense counsel table to the witness stand and remained near the jury box when defendant testified. When defendant finished testifying, the deputy followed him back to the defense counsel table. The trial court did not voice any case-specific concerns to justify the procedure. The trial court abused its discretion in adopting this procedure as the deputy’s presence was inherently prejudicial. However, the error was harmless where it was unlikely the defendant would have obtained a better result absent the presence of the deputy when he testified.id: 22454
The trial court erred by allowing defendant’s counsel to waive his presence at the SVP recommitment trial. Defendant had a right to be personally present at his SVP recommitment trial. Trial counsel had no right to waive defendant’s right to attend the hearing. However, the error in allowing counsel to waive defendant’s presence was harmless where defendant was largely unwilling to participate in the proceedings and never objected to his attorney’s waiver of his presence. The “unknown unknowns” of what defendant might have contributed if present did not require reversal.id: 22148
The trial court erred by accepting the attorney’s waiver of the defendant’s right to be present at the civil commitment hearing over her objection.The District Attorney filed a petition pursuant to Welfare and Institutions Code section 6500 seeking to have the defendant committed because she is mentally retarded and a danger to herself and others. The commitment was reversed because defendant’s attorney waived her appearance at the hearing without consulting her and against her expressed desire to be present.id: 21610
The trial court erred by preventing defendant from entering an NGI plea over the objection of defense counsel.Defendant charged with burglary and assault with a firearm should have been allowed to plead not guilty by reason of insanity because he committed his crimes while believing he was merely following the goals of the video game he had been playing. A defendant has the right to personally enter the plea of his choice regardless of what his counsel thinks of the merits of the plea. However, the court’s error in failing to allow the plea was harmless where the record demonstrates the lack of credible evidence for an insanity defense. id: 21143
The trial court violated defendant’s due process rights by requiring him to go to trial in jail clothing.The trial court erred by requiring defendant to go to trial in jail clothes, after trial counsel had requested a continuance in order to procure civilian clothing for the large
defendant. However, the error was not prejudicial where defendant’s credibility was not an issue (he did not testify) and jurors assured defense counsel during voir dire that they would not be influenced by the jail clothing. Moreover, contrary to defendant’s claim, the evidence supported the burglary conviction which was not a product of bias attributable to the jail clothing. id: 21024
The trial court erred in authorizing the state hospital to forcibly administer antipychotic drugs to an MDO without having the MDO present at the hearing. A mentally disordered offender’s right to refuse antipsychotic drugs is qualified and may be overcome in nonemergency situations by a judicial determination that he is dangerous. The trial court erred in conducting the hearing in defendant’s absence, although the error was harmless in light of the evidence that he was dangerous. Contrary to defendant’s claim, he did not have a right to a jury trial on the issue of the involuntary administration of the antispychotic medication.id: 20916
A defendant in an SVP proceeding has a constitutional right to testify despite counsel’s decision that he or she should not testify.A defendant in a sexually violent predator proceeding has a state and federal constitutional right to testify over the objection of his or her counsel. The trial court’s error in refusing to allow defendant to testify was harmless where the proffered testimony could not have had any impact on the jury’s conclusion that defendant was a sexually violent predator.id: 20443
A defendant has a right to admit a probation violation even if counsel disagrees with the decision to do so.A defendant has a personal and fundamental right to admit a
probation violation even if his attorney disagrees with his decision to do so. The trial court did not err in denying defense counsel's request for an evidentiary hearing to determine whether there was a violation.id: 19467
Court erred in failing to give defendant notice of a hearing to reconsider the issue of his ability to pay court-appointed counsel and cost of probation report.The court conducted a hearing in its morning session and made a finding that defendant had no present ability to pay the cost of his court-appointed attorney, presentence investigation and probation report. However, defendant was given no notice that the trial court would reconsider the issue and make a contrary finding in the afternoon session. Moreover, the record did not show that the trial court considered any evidence of actual costs, as required, when it fixed the costs of representation at $600 and of preparation of the probation's report at $562.id: 12207
Indigent defendant is entitled to a free transcript of a prior related civil proceeding.Due process entitles an indigent criminal defendant to a transcript of the testimony of witnesses in a prior civil proceeding concerning the same events which are the basis of the criminal action at which some of the same witnesses will testify.id: 12219
Court erred in refusing defendant's pretrial request to change into civilian clothing.The trial court erred in refusing defendant's pretrial request to change into civilian clothing. The court refused the request because it was made immediately before the jury panel arrived before voir dire. However, the request was not untimely and defendant objected to his appearance before the jury could have drawn negative inferences from his prison attire. Furthermore, the record reflected defendant's clothes were in the building and the request would have caused only a slight delay. However, the error was harmless in light of the strong testimonial and physical evidence of guilt and defendant's own disruptive behavior in the courtroom.id: 12209
The trial court erred in granting defendant's request to absent himself during the taking of evidence.Defendant appeared in court with a black eye and indicated he wished to absent himself from trial for the day so as not to create a negative impression on the jury. After being advised of his right to be present the court accepted defendant's waiver. However, under Penal Code sections 977 and 1043 the court erred in granting his request to absent himself during the taking of evidence. The error was not prejudicial where it was not reasonably probable defendant would have received a more favorable result absent the error.id: 12226
Failure to instruct on nontestifying defendant's right not to testify is not reversible per se.The trial court's failure to give a nontestifying defendant's requested jury instructions explaining his constitutional right not to testify is error pursuant to <i>Carter v. Kentucky</i> (1981) 450 U.S. 288. However, the error is not reversible per se, but instead is subject to a harmless error analysis.id: 15866
The trial court erred by requiring defendant to testify out of order or rest his case after a scheduled defense witness could not be located.The trial court erred by requiring defendant to testify out of order or rest his case when a scheduled defense witness could not be located. The trial court's ultimatum, made in front of the jury, was an abuse of discretion and coerced defendant's waiver of the privilege against self-incrimination.id: 16756
Defendant's absence during the readback of testimony, without a written waiver was harmless.Defendant's absence from the readback of testimony violated Penal Code section 997, subd.(b)(1) because he did not execute in open court a written waiver of his right to be present. However, the error was harmless where it could not reasonably have influenced the verdict.id: 19071
The error in allowing penalty phase testimony in defendant's absence was harmless where it was not likely to have altered the penalty.The trial court erred by permitting the nondisruptive capital defendant to be absent during the taking of evidence at the penalty phase. However, the court's error in accepting defendant's waiver was harmless where his absence during the testimony of certain witnesses was not likely to alter the penalty.id: 18354
The court erred in conducting a hearing in the capital case in defendant's absence based solely on counsel's statement that defendant decided to waive his presence.At a preliminary hearing to determine the admissibility of jailhouse tape recordings, defense counsel informed the court that defendant had decided to waive his presence. However, the evidence of defendant's consent to conduct the hearing in his absence was scant, and there was even less evidence that he understood the right he was waiving and the consequences of the waiver.id: 18666
Defendant has a right to be present when the jury visits the crime scene after deliberations have begun.When the trial court authorizes a jury to view the scene of an alleged crime during a criminal trial, the defendant and his or her counsel have the right to be present during the jury view. Similarly, when a jury has visited the crime scene during trial and, after deliberations have begun, requests and is permitted to revisit the crime scene, the defendant and his or her counsel also have the right to be present at the jury's return visit to the crime scene.id: 18687
Court committed harmless error by excluding a self-represented defendant from a portion of the prosecutor's opening argument after repeated spurious objections and warnings.A defendant who was representing himself was excluded from the courtroom following repeated spurious objections during the prosecutor's opening argument. The court erred by proceeding in defendant's absence while standby counsel was available. However, the error was harmless where the defendant was left unrepresented for only a brief period of time.id: 17032
Updated 6/1/2024The trial court did not err in conducting proceedings that defendant characterized as an evidentiary hearing in his absence.Defendant argued the trial court violated his due process rights at his Penal Code section 1172.6 resentencing hearing by conducting the hearing in his absence. However, defendant was present at the hearing where the evidence was admitted. The court later denied the petition after the parties stipulated to the court’s ruling on the motion without an evidentiary hearing. Contrary to defendant’s claim, the court did not conduct an evidentiary hearing in defendant’s absence.id: 28281
Updated 3/6/2024Defendant forfeited the issue of whether he was forced to testify before his expert.Defendant argued the trial court erred by compelling him to testify as a foundation for his expert’s testimony that the confession was false. However, the court placed no restrictions on defendant and the parties assumed defendant would testify first. Because defendant never objected to the arrangement, his claim was forfeited.zid: 26645
Updated 2/22/2024The record did not show defendant’s decision to not testify was tied to his misunderstanding of his ability to appeal a tentative ruling.Defendant argued that his decision to forego testifying was not knowing and intelligent because it was based on his mistaken belief that he could appeal the trial court’s tentative ruling on the admissibility of evidence. A formal in-court waiver of his right to testify was not required where there was no conflict on the issue between defendant and counsel. Moreover, the record did not support his claim that had he understood he could not appeal the tentative ruling he would have testified.id: 26961
Updated 2/4/2024Defendant waived his right to be present at trial where he overdosed on the day of trial and then went to the hospital rather than going to court.The trial court did not err when it found defendant to be voluntarily absent without conducting an evidentiary hearing regarding the circumstances of his absence. While defendant’s voluntary ingestion of drugs was insufficient to establish voluntary absence, the record also showed he chose to go to the hospital after the court ordered him to be in court in 15 minutes.id: 27642
Updated 2/1/2024The trial court did not err by ordering defendant to appear remotely for the Marsden and new trial motions during the pandemic.Following his conviction for false imprisonment, defendant made a Marsden motion to replace appointed counsel and he moved for a new trial. Because of COVID-19 restrictions in place at the time he was not physically present when the motions were argued although he appeared via video. Under the pandemic related circumstances, the court’s order forcing him to appear remotely was not reversible error.id: 27986
Updated 1/31/2024Denying defendant’s request to be personally present for post-trial motions during pandemic was harmless error.Defendant filed Marsden and new trial motions between his conviction and sentencing, but COVID restrictions prevented him from being present in the courtroom when the motions were argued. His virtual appearance may have violated his right to be personally present but he failed to show any prejudice caused by the error.id: 28022
The trial court did not err by finding defendant’s outburst the previous day resulting in his removal, was likely to recur.Defendant had a violent outburst during his capital trial and was removed from the proceedings. Although he was not disruptive the next morning, he arrived in jail clothes, in a wheelchair and exhibited other issues (noises and movements) that led the court to believe he would again disrupt the proceedings. Evidence supported the trial court’s conclusion that if permitted to stay he would again disrupt. Even if the court erred by removing him, the error was harmless as defense counsel was well-prepared to question the witnesses, and the jurors were instructed not to consider defendant’s absence.id: 26204
Any error in defendant’s absence from stipulated hardship excusal process was harmless. Defendant argued that she was entitled to be present when counsel for both sides discussed hardship screening in chambers and agreed by stipulation to excuse 62 potential jurors in her capital case. Assuming her presence was necessary, any claim of prejudice was speculative as nothing in the record shows she would have discouraged the stipulations. id: 26229
The trial court did not err by excluding defendant from the courtroom for the entirety of his capital trial after his violent attack on trial counsel.Defendant who had a history of violent behavior, attacked his attorney in full view of the court and prospective jurors. He did so while wearing a stun belt meant to control him. The trial court did not thereafter err by barring defendant from appearing at the trial. Since the incident happened in front of the judge, no further hearing was necessary.id: 25995
The recalcitrant defendant forfeited his right to testify by evading the question of whether he was willing to testify via closed-circuit television. Defendant was excluded from being present at trial following a violent attack on defense counsel. The court then proposed a procedure for defendant to testify if he wished. He would testify via closed-circuit TV in a question and answer format. When the court repeatedly asked whether he would agree to the arrangement, defendant said there were no rules and everyone would have to wait and see what he would do. The court feared defendant was trying to force a mistrial and concluded he forfeited his right to testify. When asked whether he wished to testify at the penalty phase under the earlier described conditions defendant said he wanted nothing to do with the trial.id: 25996
Discussion regarding defendant’s testimony in his absence was not prejudicial where the issue was then fully discussed.Defendant was absent during certain conferences where the parties discussed whether he would testify. He argued the discussions violated his Sixth Amendment right to be present. However, there were subsequent discussions that took place where defendant was present and actively participated. There was no subject discussed in his absence that wasn’t thoroughly covered in his presence. Any error was therefore harmless. id: 25865
The trial court did not err by admitting a photo of defendant in a jail jumpsuit. Defendant argued the trial court erred by admitting photographs of him in an orange jail jumpsuit on the day of his arrest. However, the photos corroborated certain witness testimony and the jury knew defendant had been in custody. There was no constant reminder during the trial that defendant was in custody.id: 25792
Ex parte hearings regarding codefendant’s discovery obligations did not prejudice defendant.The capital defendant argued the trial court erred by excluding her from hearings that were focused on whether she was entitled to pretrial discovery from the codefendant. Assuming the order violated her right to be present, no prejudice could have resulted from the exclusion of her defense team from the hearings.id: 25015
The trial court properly denied defendant’s request to wear his wedding ring at the capital trial. The trial court did not err in denying defendant’s request to wear his wedding ring at trial. The ruling did not violate his right to be tried in civilian attire, and did not remind the jury of his custodial status. Moreover, the trial court properly weighed the slight probative value of the evidence against the security concerns posed by wearing the ring.id: 25546
Replacement of a juror outside of defendant’s presence while counsel was sick and another lawyer appeared to request a continuance violated defendant’s right to counsel.The trial court lacked good cause to excuse Juror No. 4 who was 15 minutes late for the start of the evidence portion of trial. Moreover, excusing the juror outside of defendant’s presence and while he was represented by an attorney who was standing in for defendant’s temporarily ill counsel who was told she was appearing to agree to a continuance, violated defendant’s constitutional right to be present and represented by counsel at critical stages of trial. The stand-in lawyers’s failure to object did not forfeit the issue on appeal. And the error required reversal of the conviction as there was no way of determining whether the replacement of the juror contributed to the verdict. id: 25430
Defendant validly waived his constitutional right to be present during jury selection in his capital case but the court committed statutory error by failing to obtain a written waiver. During voir dire proceedings, defendant was attacked in the holding cell, and agreed to waive his presence that day. The next day, counsel waived defendant’s presence because of the nature of the injuries and the need for treatment. Defendant validly waived his constitutional right to be present despite claims that he lacked the capacity at that time to make a valid waiver. However, the court violated Penal Code sections 997 and 1043 by failing to obtain a written waiver of his right to be present. The statutory error was harmless as it was unlikely defendant would have obtained a better result absent the error.id: 25422
Defendant’s absence from a hearing where the court ordered deputies to be present for attorney-client visits was harmless where defendant never later complained about the arrangement.Defendant argued a denial of his right to be present at all critical proceedings when he was absent from court on the day the judge ordered that law enforcement officers would have to be present during any attorney-client consultations. Any error in excluding him from the proceedings was harmless where he never later voiced any concern regarding the presence of the officers during meetings with counsel.id: 25143
The trial court did not prejudicially err by excluding the capital defendant from the witness immunity proceedings where defendant failed to object even though there was no transcript of one of the proceedings.Defendant argued his right to be present was violated by the court’s decision to exclude him from the immunity hearings for prosecution witnesses. However, defendant forfeited the claim by failing to raise it at trial. While transcripts from one hearing were not included in the appellate record, there was no prejudice where defense counsel had the opportunity to fully cross-examine the witnesses on the precise nature of the immunity they were granted. id: 24798
The trial court did not err by proceeding with an already commenced trial where defendant failed to appear after the court granted his Faretta request.After going through several appointed lawyers, defendant moved for self-representation. During jury selection the court indicated it would not grant defendant even a one day continuance, and then granted his request for self-representation. Defendant finished the voir dire and appeared for full examination of the prosecution’s first witness. Defendant failed to appear in trial the next day, as the court tried to locate him (he was out of custody). The next day the court found defendant had voluntarily absented himself and resumed trial without him. The court did not err by failing to reappoint counsel as defendant waived the right to counsel and to be present. The court also did not err by refusing to grant a one day continuance.id: 24805
Defendant’s absence during the playing of a 911 recording and later witness testimony was harmless where defendant waived his presence during the recording, and had conceded the issues the witnesses described.Defendant’s absence from trial while the prosecution played the recorded 911 call did not constitute structural error. Defendant had already heard the recording during prosecutor’s opening statement and was upset by it and so he waived his presence. His absence from witness testimony after the 911 recording was harmless since the witnesses testified as to matters defendant had conceded. id: 24547
The trial court did not err by responding to a juror question during deliberations without defendant being present. The trial court did not err by responding to a juror question during deliberations when defendant was not present. The discussion in the courtroom involved a legal matter and defendant’s presence would not have contributed to the fairness of the proceedings.id: 24453
Defendant waived his right to represent himself at the Prop 47 hearing by failing to assert the right, and waived the right to be present for the misdemeanor resentencing. Defendant had represented himself in the earlier case and later filed a Prop 47 petition. The trial court appointed counsel, granted the petition, and sentenced him on the misdemeanor convictions. Defendant argued the trial court deprived him of the right to represent himself at the Prop 47 hearing. However, the record shows defendant did not continue to assert, but rather waived his right of self-representation. Defendant also argued that he had a right to be present at the resentencing, but counsel indicated defendant had waived his right to be present for the misdemeanor resentencing.id: 24609
Shackling order did not coerce defendant into waiving his right to be present.The trial court excused defendant from numerous pretrial proceedings in the guilt phase of his capital case. Defendant argued that his waiver of the right to be present was coerced by the court’s order that he be shackled. However, defendant was only restrained while being transported to court and that action did not coerce him into waiving his constitutional right to be present. His absence did violate Penal Code sections 977 and 1043 but the error was harmless as he failed to show how he could have improved his defense if present.id: 24177
Supreme Court holds that defendant entering guilty plea need not know risks of self-representation before waiving counsel.The Iowa Supreme Court held that before a court accepts a guilty plea from an unrepresented defendant, it must (1) advise defendant that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked and (2) admonish defendant that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether it is wise to plead guilty. The U.S. Supreme Court unanimously reversed, holding that to obtain a valid waiver of the right to counsel, a trial court need only inform the defendant of the nature of the charges against him, his right to be counseled regarding his plea, and the range of allowable punishments attendant upon the entry of a guilty plea. The Court explained that the information the defendant must have to enter a valid waiver of the right to counsel depends on factors such as the defendant's education, the nature of the charges, and the stage of the proceeding.id: 17789
Supreme Court holds that defendant entering guilty plea need not know risks of self-representation before waiving counsel.The Iowa Supreme Court held that before a court accepts a guilty plea from an unrepresented defendant, it must (1) advise defendant that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked and (2) admonish defendant that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether it is wise to plead guilty. The U.S. Supreme Court unanimously reversed, holding that to obtain a valid waiver of the right to counsel, a trial court need only inform the defendant of the nature of the charges against him, his right to be counseled regarding his plea, and the range of allowable punishments attendant upon the entry of a guilty plea. The Court explained that the information the defendant must have to enter a valid waiver of the right to counsel depends on factors such as the defendant's education, the nature of the charges, and the stage of the proceeding.id: 20127
Rereading of testimony outside the presence of defendant, defense counsel and the trial judge was not erroneous.The rereading of testimony is not a critical stage of the trial in which defendant has a personal right to be present. Also defense counsel never objected to the proposed procedure so defendant could not later claim counsel should have been present. Moreover, the trial judge was also not required to be present. id: 23766
The trial court did not err by excluding defendant from a hearing to discuss the testimony of a defense psychologist.Defendant argued the court erred by excluding him from a hearing to discuss the testimony of a defense psychologist. However, defendant waived his presence at the hearing. Moreover, his absence did not create a conflict of interest where the hearing itself resolved any mistake made by defense counsel by precluding the admission and discovery of the chronological support erroneously showed to the psychologist.id: 23768
Defendant was properly excluded from his penalty phase trial after repeated misconduct including defilement of the courtroom.The trial court did not err by excluding defendant from the penalty phase of his trial in light of his egregious conduct that included spitting on the judge, and throwing a bag of excrement and urine in court. Defendant had been warned previously and defense counsel acknowledged that further misconduct could result in defendant’s expulsion. id: 23774
Defendant did not have a right to be personally present for hearings where the prosecutor educated the court as to how inmates abused the jail phones.Defendant used the jail telephone to attempt to dissuade a witness from testifying. During a later hearing, the prosecutor explained how inmates were able to use jail telephones to call people they were not supposed to call. Excluding defendant from the hearings did not violate her right to be personally present for the proceedings.
The hearings bore no substantial relation to defendant’s opportunity to defend against the charges, she was present for some of the hearings and her attorney was present for all hearings.id: 23515
Defendant’s absence from in-chambers voir dire questioning did not violate his right to be present.Defendant’s absence from in-chambers voir dire questioning in his capital case did not violate his 6th Amendment right to be present where he offered no explanation on how his absence impaired his ability to defend himself.id: 23249
Due process did not require a written waiver of defendant’s right to be present for his SVP trial. Defendant orally waived his right to be present for his SVP trial. Penal Code section 977, subd.(b), which requires a written waiver, did not apply because this was not a felony prosecution. Neither the state nor federal due process provisions required a written waiver, and if they did, the error was harmless where there was no question that defendant voluntarily made an oral waiver of his right to be present.id: 23137
The trial court did not err by excluding defendant from the courtroom following his disruptive behavior without an audio or video feed allowing him the hear the witness’s testimony.Defendant was convicted of corporal injury to the mother of his child in violation of Penal Code section 273.5, subd.(a). He was excluded from the courtroom during the victim’s testimony following his attempts to communicate directly with her while she testified, and other disruptive behavior. He argued the trial court erred thereafter by failing to provide him with an audio or video feed allowing him to hear the witness’s testimony. However, there was no error as the equipment the defendant requested was not immediately available and the court offered defense counsel breaks during the testimony to allow defendant and counsel to confer.id: 23033
Defendant had no right to be personally present during the deliberating jury’s attempt to reenact the stabbing incident.The trial court granted the deliberating jury’s request to reenact the stabbing incident. Defendant argued that he had the right to be personally present during the reenactment. However, a defendant has no right to invade a jury’s deliberations by being personally present during an attempt to reenact the events described by witness testimony. id: 22717
The trial court erred by applying a local rule requiring misdemeanor defendants to appeal personally at readiness and settlement conferences.The trial court erred by applying a local rule requiring misdemeanor defendants to personally appear at readiness and settlement conferences. Penal Code section 977 provides that misdemeanor defendants may appear by counsel only. While the present matter was moot, the court decided the issue because it was likely to recur.id: 22712
Defendant’s throwing of apples at judge and jury did not show evidence of incompetence and did not require mistrial or individual questioning of the jurors. During the presentation of the defense case at the guilt phase, defendant stood up and threw apples at the judge and jurors. The trial court did not err by not suspending proceedings to determine whether defendant was competent to stand trial or by not questioning the jurors to see if defendant’s misconduct had prejudiced them against him. And the prosecutor did not later err during the penalty phase by telling jurors they could consider the issue in determinating penalty.id: 22584
Conducting sidebars during voir dire at defendant’s capital trial did not violate his right to be present or to a public trial. Defendant argued that his absence from sidebar conferences where all cause challenges were made at his capital trial violated his right to be present. However, he did not show how his presence at these conferences related to his opportunity to defend himself. Neither did the procedure violate his right to a public trial as the courtroom was not closed and sidebar conferences to discuss challenges was unlike closing the courtroom.id: 22262
Numerous unreported conferences did not require reversal where they involved mostly minor administrative matters and defendant had no right to be present. The trial court conducted numerous unreported proceedings during defendant’s capital murder trial. The conferences involved either administrative matters or questions of law. They were conducted in the hallway outside the presence of the jurors. Defendant did not have a constitutional right to be present for these conferences. Moreover, the error in failing to have a court reporter record the proceedings did not require reversal where the conferences involved minor matters or were made part of the record as settled statements.id: 22433
A defendant has a right to plead NGI if there is evidence to support the plea.The trial court did not err by allowing defendant to plead not guilty by reason of insanity over defense counsel’s objection. The plea was free, voluntary, made with knowledge of its consequences, and there was some evidence to support it. id: 22428
Defendant had no right to be present at a hallway conference regarding a legal issue during jury selection in his capital case.Defendant argued that a conference between the judge and the attorneys in the hallway during jury selection violated his right to be present. However, the discussion involved the propriety of defense counsel’s comments to the jury regarding mitigation. It was a legal issue and defendant did not have a right to be present.id: 22273
Defendant's Faretta waiver was not invalid where the court misinformed him that he, and not counsel, would decide the defense theory and where counsel presented a defense defendant did not initially endorse.Defendant argued his waiver of the previously asserted right to self-representation was invalid because it was conditioned on counsel's presentation of a defense that he did not ultimately present. However, defendant later agreed that counsel could present another defense so he could not claim error. For the same reason, he could not complain that the waiver was ineffective due to the court's misadvisement that the defendant, not counsel, decides the defense theory of the case. id: 21905
Traffic court erred by proceeding with trial with absent defendant without inquiring as to whether absence was voluntary.The traffic court erred when it proceeded with trial in defendant’s absence without making appropriate inquiries into the reasons for the absence to determine whether it was knowing and voluntary. However, the error was harmless where the case only involved two minor traffic infractions and defendant presented no cororable argument as to why she should not have been found guilty.id: 21672
Defendant did not have a right to be present during the chambers conference about the jury’s question as to whether starvation can constitute torture.During guilt phase deliberations the jury asked whether starvation could be “construed as extreme physical pain under the legal definition of torture.” Defendant did not have a right to be present during the chambers discussion regarding how to respond to the question. Moreover, the court did not err by allowing the jurors to determine whether the starvation could constitute torture.id: 21733
The trial court did not err by conducting certain hearings outside the capital defendant’s presence. Capital defendant’s absence from several hearings, including a hearing to determine whether a juror had been drinking, was not improper where his presence was not necessary to defend against the charges.id: 21789
Indigent defendant was not entitled to have experts appointed to support defense counsel’s argument at sentencing.The trial court did not err by refusing to appoint a psychotherapist and a drug treatment counselor to help defendant present addiction treatment options at the sentencing hearing. Evidence Code section 730 does not authorize the appointment of experts after trial in connection with sentencing proceedings. Moreover, neither the state nor federal constitutions entitled an indigent criminal defendant to improve his chances of a favorable sentencing choice by having experts appointed to support defense counsel’s argument.id: 21067
Capital defendant was not entitled to be present for noncritical proceedings including vague discussions regarding his planned testimony, read back of testimony, and discussion regarding voir dire procedures.Defendant’s right to be present for all critical stages of a capital case did not extend to a vague discussion where the prosecutor
asked about defendant’s proposed testimony but defense counsel provided no details. Moreover, he was not entitled to be present when testimony was read back to jurors during deliberations or when the parties agreed in a telephone conversation with the judge on a definition of “possession”. Finally defendant was not entitled to be present for proceedings during which the court and counsel discussed voir dire procedures in the absence of the prospective jurors. id: 21036
Ex parte in camera meetings between each counsel and the court instigated by defendant did not violate his right to be present or to counsel.Defendant argued that the absence of himself and counsel from 10 ex parte in camera meetings between cocounsel and the trial court violated his right to counsel and right to be present. However, the court also met with defendant’s counsel outside the presence of codefendant’s counsel, and these ex parte meetings were instigated by defendant. Moreover, the matters discussed in the conferences did not bear on evidence, the conduct of the defense or the outcome of the case. id: 20584
Restrictions placed on defendant’s testimony did not violate his right to testify on his own behalf.The restrictions placed on defendant’s testimony, that he could not describe details of fights with the victim although he could testify about the contentious relationship, did not interfere with his fundamental right to testify.id: 20855
Defendant validly waived his right to be present at a hearing to impose sentence in the event he was rejected by the CRC.Defendant was committed to the California Rehabilitation Center after pleading guilty to domestic violence. He argued the waiver he sought pursuant to Welfare and Institutions Code Section 3053 waiving his right to be present at a hearing to impose sentence in the event of his rejection or disqualification from CRC was unauthorized. However, contrary to defendant’s claim, the waiver is valid.id: 20799
A defendant who escaped during trial but was apprehended was voluntarily absent during the time reasonably required to return him to court.Under Penal Code section 1043, subd.(b)(2), a noncapital felony trial may continue where a defendant voluntarily absents himself. Defendant escaped after the jury was sworn but before any testimony was taken. He was found several hours later and was told he would be returned to court the following day. That afternoon, the trial proceeded in his absence. The Court of Appeal erroneously held defendant’s absence ceased to be voluntary once he was returned to custody. His voluntary absence includes the time reasonably required to return him to court after apprehension.id: 20637
Capital defendant had no right to be present at a hearing regarding a potential death threat directed towards a juror.Defendant argued he had a right to be present for the hearing regarding a threat made to a juror during the penalty phase of his trial. However, the defendant had no right to be present given the delicate circumstances and the possibility that he might somehow have been involved in the threat.id: 20539
There was no violation of the right to be present where the prosecutor briefly discussed a witness issue while defendant was not present or when a alternate juror had a brief discussion with the court.There was no violation of the defendant’s constitutional right to be present for the proceedings where the defendant was absent from the courtroom when the prosecutor discussed the trial attendance of a witness when the trial court waited until defendant was present to resume the hearing, or when the trial court had a brief discussion with an alternate juror who had a personal problem resulting in her excusal. In neither case was defendant’s ability to defend the charges adversely affected.id: 20494
Capital defendant's absence during his mother's guilt phase testimony was not prejudicial error.The trial court did not prejudicially err by allowing the capital defendant to voluntarily absent himself during the testimony of this mother during the guilt phase. While his absence violated Penal Code section 997 and 1043, the guilt phase evidence against him was overwhelming and he had already testified on the topics about which his mother was to be examined.id: 20269
The decision to enter a not guilty plea by reason of insanity plea is a fundamental decision which the defendant has a right to make regardless of defense counsel's opinion. The trial court committed reversible error when it failed to allow defendant to enter a plea of not guilty by reason of insanity when defendant unequivocally expressed a desire to do so, even though his counsel was opposed to the entry of the plea.id: 20207
Court did not err in denying mistrial motion where witness briefly mentioned defendant's parole status.Although a police officer witness testifying for the prosecution referred briefly to the parole office in connection with obtaining defendant's address, the witness' answer was nonresponsive and the prosecutor interrupted before the answer was completed. The trial court did not err in denying defense counsel's motion for a mistrial based on this brief incident.id: 17095
The trial court did not abuse its discretion in denying defendant's motion to testify after both sides had rested.After both sides rested but before the jury was instructed, the trial court granted the prosecutor's motion to amend the second count to make it a misdemeanor. Defendant then announced he wanted to testify. The trial court did not err in denying defendant's request to reopen evidence. The motion came late in the proceedings and did not propose to offer any new, particularly significant, evidence.id: 18108
Court did not err by allowing defendant to stand trial while CLAD in identifiable jail apparel.Defendant argued the trial court erred by allowing him to stand trial before a jury while clad in identifiable jail apparel. However, the court is under no sua sponte obligation to obtain a waiver of defendant regarding his right to wear ordinary clothing. Moreover, in the instant case, defendant never sought permission to wear civilian clothing. Defense counsel's failure to object did not constitute ineffective assistance where nothing in the record indicated trial counsel's inaction was based on a misguided tactical decision.id: 12200
Court did not err in proceeding with trial in defendant's absence where defendant wrote counsel a note saying "You're fired" and refused to give reasons.Defendant sent a note to defense counsel that read You're fired. Counsel attempted to discuss the matter with defendant, but defendant refused. The court then asked defendant for a statement of reasons before the court would discharge counsel. The court did not err in proceeding with trial in defendant's absence where defendant never requested the court to substitute counsel, and because he declined to state reasons for his apparent dissatisfaction with counsel.id: 12205
Defendant's waiver of the right to be present at the bench conference was valid where it was the condition upon which hardship requests could be considered outside the presence of the other jurors.During selection of the penalty jury, defense counsel asked that the court consider requests to be excused for hardship at the bench rather than in front of the other jurors. The court agreed so long as defendant waived his right to be present at the bench. The condition did not render defendant's waiver invalid.id: 12217
There was no error in failing to permit defendant to testify where the record showed he repeatedly changed his mind, and made no comment after the defense rested.Defendant argued counsel rendered ineffective assistance by notifying the court out of defendant's presence that counsel would not call defendant to the stand despite his desire to testify, and that the court, upon learning of the conflict, erred by failing to advise defendant of his right to testify or obtain a waiver. However, the record showed defendant repeatedly changed his mind about testifying. The record did not establish a conflict between defendant and counsel. The court was not required to advise defendant of his right to testify or obtain a waiver.id: 12227
Capital defendant's absence from various discussions conducted in the hallway did not violate his right to be present.Defendant argued his absence from the capital proceedings on five occasions required reversal of the verdicts. The occasions included discussions during voir dire and evidentiary rulings. Nothing in the record shows defendant's presence would have made any difference. Moreover, defense counsel was present on each occasion to fully represent defendant's interest.id: 20003
Trial court did not err in allowing an armed guard to sit next to defendant while he testified.The trial court did not abuse its discretion in permitting the presence of an armed guard behind defendant on the witness stand. Defendant made no showing that the jurors drew negative inferences from the guard's presence. Moreover, the trial court admonished the jurors to ignore defendant's custodial status in reaching their decision.id: 19922
Allowing jurors to leave the courtroom through a private passage did not violate defendant's right to be present or to due process. Following the verdict, the jurors informed the court clerk they did not wish to speak with anyone. The court thereafter arranged
for the jurors to leave the courthouse through a private corridor. The defense had not been informed of the arrangement before the jurors left. Contrary to defendant's claim, this was not a critical stage of the proceedings at which he was entitled to be present. Morever, Code of Civil Procedure, section 237, which restricts a defendant's access to jurors after trial, did not violate substantive due process as applied because there is no historical right to question jurors about the verdict and there was no hint of juror misconduct in the record.id: 19452
Defendant had no constitutional right to testify at his SVP recommitment trial over counsel's objection.Defendant did not have a constitutional right to testify over his
attorney's objection at his sexually violent predator trial because SVP proceedings are civil in nature and defense counsel can waive the right to testify on the ground that doing so would be harmful to defendant's case.id: 19339
The trial court did not err in allowing the guilt verdict to be read in defendant's absence where he was in dire condition in the hospital and the length of his incapacitation was uncertain.Defendant argued the court erred in having the verdict read while he was in the hospital recovering from injuries received in a jailhouse attack. However, when the jury reached a verdict defendant was in intensive care and the length of his incapacitation could not be known. A delay could have disrupted proceedings resulting in a loss of jurors. The court did not err in allowing the verdict to be read in defendant's absence.id: 19248
Defendant's self-inflicted injuries which he caused to obstruct proceedings supported the finding he waived his right to be present for part of the trial.Defendant's self-inflicted injuries which he apparently caused in order to feign incompetence and obstruct the proceedings, constituted volitional conduct for which he was properly deemed to have absented himself from the proceedings and to have waived his right to be present.id: 19249
Capital defendant had no right to be present during in-chambers hearings regarding juror hardship excusals. Defendant argued his absence from in-chambers hearings regarding juror hardship excusals violated several constitutional and statutory rights. However, defendant had no constitutional or statutory right to be present during discussions regarding hardship excusals.id: 19221
Defendant's involuntary absence from trial was structural error requiring reversal of all convictions.Defendant was voluntarily absent from trial following his escape from custody. When he was re-apprehended in Perris, he was again subject to the control of the state. After his rearrest, his absence from trial was involuntary, regardless of his initial voluntariness in failing to appear in court. Defendant's involuntary absence from the courtroom during the
prosecution's presentation of all the evidence to support certain charges was structural error.id: 19175
A capital defendant may not invalidate the penalty phase proceedings by refusing to attend. Defendant argued the trial court erred at the penalty phase by permitting him to voluntarily absent himself at times, and that his written waiver did not adequately inform him of his right to be present. However, the law permits a defendant to waive his presence in certain circumstances and a capital defendant may not invalidate the proceedings by refusing to attend. id: 19008
A defendant may not complain on appeal that the trial court erred in handling issues following his own misconduct.Defendant misbehaved during his capital trial on certain occasions including incidents where he telephoned jurors from the jail and assaulted defense counsel. He argued the court erred by failing to voir dire the jurors to determine whether
his misconduct had prejudiced them. However, a defendant may not complain on appeal about the possible effect of his own misconduct on the jurors. Likewise, while the court could have
excused defendant from the courtroom following his bad behavior, he could not claim on appeal that the court erred by failing to do so. id: 19012
Defendant's absence from a bench conference regarding the exclusion of spectators did not violate his constitutional and statutory rights to be present.Defendant argued that his absence from a bench conference where counsel discussed the exclusion of spectators who were overheard discussing the case, violated his right to be present. However, the bench conference was not a critical hearing for which defendant's presence was required. This is so, even though his attorney noted at the conference that defendant was a dangerous person.
id: 19018
Because the court retreated from its initial directive that defendant testify first or not at all, the court did not improperly burden his right against self-incrimination.Defendant argued the trial court erred by requiring that he either be the first defense witness or not testify at all. However, the court reconsidered its original ruling. Moreover, there was no reason to put defendant on the stand after his alibi witness testified. Because the court retreated from its original directive that defendant testify first or not at all, there was no violation of defendant's right against self-incrimination.id: 18815
The readback to the jury over express defense objection and out of defendant's and counsel's presence did not violate defendant's right to counsel or due process.Defendant argued the readback to the jury over express defense objection out of his and his attorney's presence violated his constitutional rights to counsel and due process. However, on a record not only showing the court carefully admonished the jury before readback but also failing to show that defendant's or counsel's presence during readback could have assisted the defense in some way, the court committed no constitutional error in allowing the readback over express defense objection.id: 18812
Defendant may not voluntarily absent himself from his capital trial under sections 977 and 1043.Defendant voluntarily absented himself from the penalty phase, and viewed that part of the trial on a TV in the holding area. There was no Sixth Amendment right to be present violation in light of the waiver defendant prepared. However, a defendant may not voluntarily waive his rights under Penal Code sections 977 and 1043. Nevertheless, the error was harmless where it was not reasonably probable that he would have received a better result absent the error.id: 18559
The trial court did not err in excluding defendant from a hearing in his capital case where counsel declared a conflict of interest due to defendant's threats.Defendant argued the trial court erred in excluding him from proceedings wherein defense counsel declared a conflict of interest due to defendant's threats of violence against counsel. Defendant testified that he meant no harm and only sought to delay the proceedings. However, it is doubtful that his presence would have added anything to the proceedings, and his exclusion did not diminish the fairness of the hearings.id: 18508
Defendant's exclusion from various pretrial and trial hearings did not violate his right of personal presence.The trial court did not err by excluding defendant from various bench conferences during voir dire and conferences outside the jury's presence relating to jury instructions. Defendant's personal presence at these proceedings was not necessary. Defendant's absence from the hearings for a continuance presents a closer question. Defendant claimed he could have assisted counsel in showing why a continuance was needed. However, counsel informed the court of the importance of interviewing reluctant individuals on the East Coast. For defendant to have vouched for counsel's representations would not have enhanced the case for a continuance.id: 18042
Evidence of defendant's severe physical pain during trial did not establish incompetence or mental absence.Defendant argued that he was suffering from such debilitating pain (severe headaches and back pain) during trial that he was "mentally absent" and the court's failure to suspend the proceeding denied him of his rights to be present and competent. However, the record did not show defendant was irrational, incoherent, or in a general state of collapse during trial. To the contrary, the record showed defendant was alert and coherent during the proceedings. There was no evidence the pain medication he ingested on the first day of trial impaired his ability to participate in the trial. He was examined by a health professional who did not conclude defendant was unfit to proceed. That defendant may have been distracted by physical pain or other symptoms of physical distress did not establish mental absence or incompetence.id: 17819
Defendant voluntarily absented himself from trial by failing to appear for his second day of trial, and completing the trial did not violate his constitutional right to be present.Defendant failed to return to court on the second day of trial. He notified the court he had been threatened and feared being taken into custody. However, defendant did not have the legal option of refusing to appear unless the court promised he would remain free on bail. Defendant voluntarily absented himself from the proceedings and the decision to complete the trial in his absence did not violate his constitutional right to be present.id: 17610
The trial court did not abuse its discretion by ordering a deputy to stand near the dangerous defendant when he testified.Defendant argued the trial court erred by placing a deputy sheriff next to him during his testimony. However, defense counsel feared an attack from defendant and earlier requested physical restraints. Prior to defendant's testimony, the court offered the option of restraints or a deputy nearby. The court reasonably concluded it would be irresponsible to leave the jury unprotected from the dangerous defendant. The court properly exercised its discretion in securing the courtroom. id: 17462
The trial court did not err by allowing defendant to testify in the penalty phase against the advice of counsel following the necessary warnings and waiver.Defendant testified at the penalty phase, against the advice of counsel. He testified in the narrative form. He said, among other things, that he believed death was the appropriate penalty. On appeal, he argued the court erred in failing to determine whether the waiver of counsel was knowing and voluntary, and in failing to adequately caution him against giving narrative testimony. However, the court repeatedly admonished defendant regarding his refusal to take counsel's advice and the dangers of testifying. The court did not err in allowing defendant to exercise his right to testify. Moreover, since counsel was present it was not necessary that the warnings about self-representation be as complete as would be necessary for a defendant who sought to conduct the entire defense.id: 17350
Excluding defendant from a chambers conference in which the parties discussed an arrest warrant for a defense witness was not prejudicial where the victim appeared voluntarilyDefendant argued reversal was required where he was excluded from a chambers conference. The record, while not clear, suggests defense counsel did not want defendant to know he was seeking a bench warrant for the arrest of the witness, perhaps because the witness was a friend of the defendant to whom defendant felt some loyalty. However, the entire matter became moot when the witness appeared voluntarily. Therefore, defendant was not excluded from any proceeding that bore a reasonably substantial relation to his opportunity to defend himself.id: 17310
A defendant who refuses to leave a court lockup facility to attend his trial is voluntarily absent and no express waiver from the defense is necessary.In a noncapital felony case, Penal Code section 1043, subd.(b)(2), permits a trial court to continue with trial in a defendant's absence, after the trial has commenced in the defendant's presence, if the defendant is "voluntarily absent." A defendant in custody who refuses to leave a court lockup facility to attend his trial is "voluntarily absent." In that circumstance, the trial court need not obtain the defendant's express waiver of the right to be present.id: 17227
Personal waivers are not necessary where defense counsel requests that instructions on defendant's decision to not testify be withheld.The trial court did not err in accepting defense counsel's waiver of a request for CALJIC Nos. 2.60 [Defendant not testifying - no inference of guilt may be drawn] and 2.61 [Defendant may rely on the state of the evidence] without obtaining a personal waiver from the defendant. The right to have those instructions given is not "fundamental" and therefore no personal waiver was required.id: 16494
Court was authorized to proceed with trial in defendant's absence where he voluntarily absented himself before jury selection.Defendant was absent from his trial. Penal Code section 1043 provides that a defendant shall be present for trial. Section 1043, subd. (b)(2) provides an exception where a defendant voluntarily absents himself after the trial has started. Defendant argues the exception did not apply because only absences beginning "after the trial has commenced" are allowed and his absence began before jury selection, which is before "trial." However, defendant was present in the courtroom where the trial was to be held, understood the proceedings were underway, confronted the judge and voluntarily informed the judge he did not wish to be present. Defendant's "trial was commenced in his presence" within the meaning of section 1043, subd. (b)(2) and the trial court was authorized to proceed with the trial in defendant's absence.id: 16478
Court rejected proposed requirement that a trial court obtain an affirmative waiver on the record when defendant fails to testify.Defendant argued he was improperly prevented from testifying although there was no evidence in the record to support the assertion. He invited the court to adopt a rule requiring that trial courts obtain an affirmative waiver on the record whenever a defendant fails to testify at trial, and reversing any conviction obtained in the absence of such a waiver. The court rejected defendant's proposal.id: 16429
Capital defendant had no right to be present at confidential sidebar conferences during voir dire.Defendant's absence from sidebar conferences during jury selection in a capital case (where prospective jurors wanted to privately discuss certain matters) did not violate his Sixth Amendment right to be present or his statutory or common law rights.id: 16382
"Trial" begins for purposes of provision regarding defendant's voluntary absence when jury selection begins.Penal Code section 1043, subdivision (b)(2) provides that the voluntary absence of the accused in a noncapital felony case "after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict. ..." Defendant argued a "trial" by jury does not commence under this section until the jury has been sworn and jeopardy attaches. However, the Legislature intended the word "trial" in this context to include jury selection.id: 15863
Court properly permitted defendant to be absent from penalty phase where he stated he would likely disrupt the proceedings.The trial court did not err in permitting the capital defendant to waive his presence from the penalty phase proceedings after defendant represented to the court that he would likely be disruptive.id: 15864
Exclusion from bench conferences at capital trial did not violate defendant's right of personal presence.The trial court did not violate defendant's constitutional and statutory rights to be personally present at trial by excusing him from 17 bench conferences during trial. His presence at these "proceedings" was not necessary for an opportunity for effective cross-examination, nor would it have contributed to the trial's fairness in any marginal way.id: 15865
The court did not err in denying defendant's request to absent himself from the penalty phase despite his subsequent emotional outburst.Defendant argues the trial court erred in refusing to grant his request to absent himself from the penalty phase proceedings . He claimed his presence at the penalty phase posed the risk of un uncontrollable emotional outburst in front of the jury, did in fact result in an angry outburst, and that the denial of his request to waive his presence compromised the fundamental fairness of the proceeding and reliability of the death verdict. However, it was not the trial court's ruling that led to his asserted outburst. Nor did the record show defendant's conduct so threatened the dignity of the proceedings that, as a matter of law, he should have been removed.id: 15867
Court did not err in starting trial in disruptive defendant's absence in light of his waiver, even though the waiver should have been in writing.Defendant argued the trial court erred in commencing trial in his absence. However, defendant consented to starting trial in his absence, and his absence was caused by his own deliberate conduct. Moreover, he later chose to participate at trial when he believed it was in his interest to do so. Further, he orally waived his right to be present at the start of trial, and while such an oral waiver is not in strict compliance with the statutory requirement that such waivers be in writing, defendant failed to demonstrate any prejudice resulting from the error.id: 14993
Trial court did not err in allowing disruptive defendant to waive his right to be present at trial and repeated warnings as to future consequences were not necessary prior to each removal.Defendant was removed from the courtroom several times during jury selection because of his disruptive behavior. He was likewise removed during the prosecutor's opening statement. He was continually warned and asked in the jail if he would behave in the courtroom. He made clear he would not alter his hostile behavior. He was ultimately removed for the remainder of the trial. The court did not err in allowing defendant to waive his right to be present and failing to issue new warnings prior to each removal. Repeated warnings were unnecessary as defendant was aware that continued disruptive behavior would result in his removal. Moreover, the court was under no obligation to continue the trial until the defendant could calm down.id: 12228
Trial court did not violate the presumption of innocence or the privilege against self-incrimination by ordering the defendant to shave his beard during trial.Witnesses described the perpetrator as clean shaven. Before the evidence portion of the trial, the prosecution moved to compel defendant to shave his beard. The beard was then shaved after the court order. The court order did not violate the presumption of innocence or the privilege against self-incrimination as the prosecution still had to prove defendant was the gunman.id: 12229
Cost of legal services is represented by a pro rata share of the public defender's budget.Appellant was ordered to pay the County of Solano $21,000 for legal services provided to him by the public defender's office in the defense of his criminal action. The amount was based on a figure of $70 per hour given counsel's experience. However, under the Penal Code section 987.8, the cost of legal services is represented by a pro rata share of the public defender's budget and the cost to the county in the instant case was $11,312.id: 12231
A defendant claiming a violation of the right to personal presence during discussions regarding juror inquiries has the burden of establishing that personal presence could have substantially have benefitted the defense.During deliberations the jury sent a note to the court asking whether the telephone number found in defendant's luggage was Donny Marshall's. Evidence that defendant had kept Marshall's phone number in his possession could only have hurt his defense since he denied having a close relationship with Marshall. Defendant failed to demonstrate that his personal presence could have substantially have benefitted the defense.id: 12196
Counsel may waive defendant's presence at the rereading of the testimony for the jury.Where the proceeding is one in which defendant and counsel have no significant role <197> such as the rereading of testimony to the jury during deliberations <197> counsel may waive defendant's right to be present.id: 12197
Court did not abuse its discretion in excluding defendant from the courtroom following outbursts made in response to the prosecutor's allegedly improper closing argument.After certain questionable comments by the prosecutor during closing argument, defendant interrupted with an outburst and shouted an obscenity. While improper conduct by a prosecutor may understandably inflame a criminal defendant, this does not excuse a defendant's disruptive behavior. Moreover, the court employed less drastic means before ejecting defendant from the courtroom as he admonished him first and later gave him the option of leaving the courtroom or remaining under gag. The court did not abuse its discretion by excluding defendant from the courtroom.id: 12199
Court did not err in excluding defense from an in camera hearing where a witness would give reasons for asserting his privilege against self-incrimination.Defendant subpoenaed his co-participant in the crimes to testify in his behalf. Counsel for the witness told the court his client would be asserting his privilege against self-incrimination and offered to explain his reasons for doing so to the court. Defendant objected to the subsequent in camera hearing at which counsel and defendant were excluded. However, there was no error in excluding the defendant and counsel because under Evidence Code section 915, subdivision (a) the court had the authority to uphold the potential witness' claim of privilege without holding the hearing.id: 12201
Court did not err in postponing the decision to allow the defendant to waive his presence from the trial resulting in the defendant's outburst.Defendant argued his Sixth and Fourteenth Amendment rights to a fair trial and impartial jury were violated when the trial court erroneously refused his request to be absent from the trial, thus forcing him to engage in disruptive behavior and display his courtroom restraints while the jury was present. However, the court did not err in postponing defendant's right to waive his presence for a brief period. Moreover, the court promptly and carefully admonished the jurors to disregard anything they saw and heard in connection with the defendant's outburst.id: 12204
Defendant's right to be present at the jury view of the crime scene can be waived.After the prosecutor requested a jury view of the crime scene area, defense counsel noted that defendant waived his right to be present at the view. There is no support in the law for defendant's argument that his right to be present at the jury view cannot be waived.id: 12214
Defendant's voluntary absence from the penalty phase did not violate due process or section 1043.After the guilt phase verdict was read, defendant became unruly and began shouting obscenities. He told the court to conduct the penalty phase without him and two days later at the start of the penalty phase, counsel told the court defendant would continue to disrupt the proceedings and wanted to absent himself from the remainder of the trial. Defendant affirmed this on the record. The penalty phase was then conducted without him. On appeal, he argued a capital defendant may not waive his presence at the trial. The court declined to adopt a no-waiver rule. He further argued his presence was required under Penal Code section 1043 and the court was required to warn him as to the risks. However, the warning is given to allow defendant a chance to correct his behavior and here defendant specifically told the court that he would continue to disrupt the proceedings. No further warning was required.id: 12215
Defendant's waiver of his right to be present was not involuntary where he was using court time for his personal exercise and recreation.Defendant argued the waiver of his right to be present during voir dire was involuntary because recreation and exercise were necessary to his health and he could obtain them only by waiving his right to be present in court. The trial court had previously ordered that jail authorities provide defendant with five hours of exercise each week. If this order was interpreted in a manner that unreasonably interfered with defendant's right to be present during a critical stage of the proceedings, his remedy was to apply to the trial court for a further order. Having failed to exhaust this avenue of relief, his waiver could not be considered involuntary.id: 12216
Failure to obtain a written waiver of defendant's right to be present at bench conferences was harmless.Defendant orally waived his right to be present at the various in-chambers or bench conferences and at the reading of the testimony. Penal Code section 977 requires a written waiver if defendant will be absent from those proceedings. Failure to obtain a written waiver was harmless where the defendant failed to explain in what manner his presence would have improved his ability to defend against the charges.id: 12218
Lack of written waiver of defendant's presence at the jury view was harmless in light of the oral waiver.Defendant orally waived his presence at the jury view of the crime scene. Because the waiver was not written it did not comply with the requirements of Penal Code section 977. However, his oral waiver was made in open court after time for discussion with counsel. The lack of a written waiver did not affect its voluntary and intelligent nature.id: 12220
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245