Khoury v. Municipal Court

Opinion

FLEMING, J.

Appeal from the superior court's denial of a writ of mandate directing the municipal court to dismiss a misdemeanor prosecution against Lawrence Khoury, and to recall a bench warrant it issued for his arrest when he failed to appear for trial. We affirm.

The police report states that Lawrence Khoury and his codefendant Robert Kalina were arrested in Griffith Park on the afternoon of December 9, 1977, by two Los Angeles police officers, who observed defendants engaging in oral copulation on one of the park’s hiking trails. On December 21 a misdemeanor complaint was filed charging defendants with committing a lewd act in public. (Pen. Code, § 647, subd. (a).) On January 23, 1978, Khoury was arraigned and pleaded not guilty. Trial was set for February 27 in the master calendar division of the Los Angeles Municipal Court. Khoury, released on his own recognizance, executed a written promise to appear.

On the morning of February 27 Khoury, who had recently been released from the hospital, appeared in the master calendar division with his attorney, a deputy public defender. However, before the matter was called for assignment to another courtroom for trial, Khoury informed his counsel that he was not feeling well and, with his attorney’s permis-. sion, he then absented himself from the master calendar courtroom. Defense counsel later informed the master calendar judge that he had “excused” Khoury and that Khoury had authorized him to appear in his absence pursuant to Penal Code sections 977, subdivision (a) and 1043, subdivision (e).

Penal Code section 977, subdivision (a) provides that a person charged with a misdemeanor may appear by counsel only. Penal Code section 1043, subdivision (e) provides that if the defendant has authorized his counsel to proceed in his absence pursuant to Penal Code section 977, subdivision (a), the court shall proceed with the trial in his

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absence, unless there is good cause for a continuance. Section 1043, subdivision (e), however, also provides that “if there is no authorization pursuant to [Pen. Code, § 977, subd. (a)] and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may do one or more of the following, as it deems appropriate: (1) Continue the matter. (2) Order bail forfeited or revoke release on defendant’s own recognizance. (3) Issue a bench warrant. (4) Proceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held.” Section 1043 concludes by stating that “nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.”