People v. Brown

California Court of Appeal Jan 29, 1951 No. Crim. 4515Published

Before: Drapeau

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Holding. The court held that while a defendant may be sentenced in absentia under Penal Code section 1193, the record must affirmatively demonstrate that reasonable diligence was exercised to locate the defendant and explain the reason for her absence.

Issues

Whether the evidence was sufficient to support the conviction for possession of morphine.
Whether sentencing a defendant in absentia violates the 14th Amendment or the California Constitution.
Whether the trial court made a sufficient showing of diligence to justify pronouncing judgment in the defendant's absence.

Disposition. reversed

Quotations verified verbatim against the opinion

“Due process of law does not forbid a state to direct pronouncement of judgment in a criminal case when a defendant absconds and is not in court at the time set for sentence.”

“In such cases as this the record must show that diligent effort has been made to find the defendant, and the reason for his absence.”

[61]

DRAPEAU, J.

Defendant was accused of possession of a preparation of morphine, in violation of section 11500, Health and Safety Code. Trial by jury was waived, and the case submitted to the court on the reporter’s transcript of testimony at the preliminary examination, and defendant’s testimony at the trial.

The trial judge convicted defendant. This was February 24, 1950. She was permitted to remain on bail. Hearing on her application for probation, and for pronouncement of judgment, was set for March 29, 1950. On that date defendant did not appear. Bail was forfeited, and bench warrant issued for her apprehension.

The case was then continued to April 3, 1950. At that time the following occurred:

“The Court : People against Barbara Brown.

“Mr. Robinson: Tour Honor, I am unhappy. We haven’t received any more information from Miss Brown since the time she ’phoned us from San Francisco. Mr. Lavine asked me to come in and ask you to know that.

"The Court : As the situation now stands, the bench warrant is out. It is in the hands of the Sheriff. We will just mark this off calendar then.

“Mr. John J. Hill, Deputy Public Defender: Pardon me. If your Honor please, I appeared as a courtesy to absent counsel the last time. I call your Honor’s attention-

“The Court: That is right. I understand. I remember, Mr. Hill. This was for judgment and sentence.

“Let the record show pursuant to Section 1193 of the Penal Code the Court, finds that reasonable diligence has been exercised to procure the presence of the defendant; that the defendant is a defaulter and her presence has not been procured, and the Court finds that it is in the interest of justice that judgment be pronounced in her absence.

“For the crime of violation of Section 11500 of the Health and Safety Code of the State of California, upon which the defendant has been found guilty, there being no legal cause why sentence should not now be pronounced, it is the judgment and order of this Court that the defendant be confined in the Institution for Women at Tehachapi, California, for the term prescribed by law. It is ordered that the commitment'be prepared and presented to the Sheriff, along with the bench warrant which is now in his hands.”

People v. Brown

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DRAPEAU, J.

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