People v. Trubschenk

California Court of Appeal Aug 3, 1955 No. Crim. 3101Published

Before: Wood (Fred B.)

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Holding. The court held that a defendant's voluntary absence from trial does not constitute a violation of the right to be present, and that a continuance stipulated by counsel in the defendant's absence does not warrant reversal absent a showing of prejudice.

Issues

Whether a defendant's right to be present at trial was violated by a continuance ordered during his voluntary absence.
Whether the trial court erred by failing to admonish the jury during recesses prior to the introduction of evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is not every temporary absence that entails such consequences.”

“If in fact the continuance had any bearing upon the outcome of the case it was the result of defendant’s own voluntary conduct in failing to attend his own trial on the day in question.”

“It has been held that failure to admonish the jury at a time prior to the introduction of any evidence is a mere technical error and not a ground for reversal.”

WOOD (Fred B.), J.

Convicted of a violation of Penal Code, section 476a, defendant has appealed from the judgment and from the order denying his motion for a new trial.

He contends that his right to be present at his trial was violated. Defendant, as well as his counsel, were both personally present at all proceedings up to and including the selection and swearing of the jury and an alternate juror. Thereupon, the trial was continued to May 17, 1954, at 10 o’clock a. m. Defendant’s counsel appeared but defendant failed to appear at the appointed hour. The court continued the case from time to time until 1:30 p. m. of that day. Defendant had not yet appeared and his attorney informed the court he did not know the whereabouts of the defendant. The court ordered defendant’s bail forfeited and that a bench warrant for the arrest of defendant as a fugitive from justice be issued forthwith. Thereupon, pursuant to stipulation of the deputy district attorney and counsel for defendant, the court ordered that if the trial of the action and of the defendant be called up at a future date, undetermined at that time, the same jury and alternate juror would be called for service and that if any should be ill of away from the county a special venire could be summoned for service to fill in the vacancy on the jury.

On August 31,1954, defendant and his counsel were present in court and it was ordered that the trial be resumed on September 29, 1954. The court also directed the sheriff to summon the same jurors and alternate juror who had theretofore been selected.

On September 29, 1954, defendant appeared with new and different counsel and moved to dismiss the jury. The motion was denied and the taking of evidence commenced.

It is true that “ [t]he defendant must be personally present at the trial ... If the defendant in a felony case fails to appear at any time during the course of the trial and before the jury has retired for its deliberations or the case has been finally submitted to the judge, and after the exercise of reasonable diligence his presence cannot be procured, the court shall declare a mistrial and the cause may be again

[798]

tried.” (Pen. Code, § 1043.) According to section 1181 of the Penal Code when in snch a case the trial has been had in the absence of the defendant and a verdict has been rendered against him the court may upon the defendant’s application grant a new trial. (§1181.)

People v. Trubschenk

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