People v. Molina

California Court of Appeal Jan 29, 1976 No. Crim. 26535Published

Before: Wood

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Holding. A felony trial cannot proceed in the defendant's absence if the absence occurs before the jury is impanelled and sworn or before the first witness is sworn, as the trial has not yet commenced under Penal Code section 1043.

Issues

Whether a felony trial may proceed in the defendant's absence if the absence occurs before the jury is impanelled and sworn.
Whether the reversal of a conviction requires the reversal of probation revocations based in part on that conviction.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“In the present case the defendant’s absence occurred prior to the time the jury was impanelled and sworn to tiy the cause; and before the first witness was sworn, and before an exhibit was admitted in evidence.”

“It thus appears that his absence occurred before the trial commenced, within the meaning of section 1043 of the Penal Code, and before defendant was in jeopardy.”

Opinion

WOOD, P. J.

Defendant, in propria persona, filed a notice of appeal from “the judgment” in five cases, numbers A-257531, A-303667, A-427041, A-419034, and A-418054. Two of the cases (A-419034, A-418054) were consolidated for trial in the superior court. The notice of appeal will be treated as an appeal from the judgment in each case, and as a motion to consolidate all the appeals.

In case No. A-303667 the defendant was accused in counts 1 and 2 (as renumbered) of violating section 11351 of the Health and Safety Code

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(possession of heroin for sale; and possession of amphetamine sulphate for sale, respectively); and in count 3 of violating section 11359 of the Health and Safety Code (possession of marijuana for sale). In a juiy trial he was found guilty on counts 1 and 2, and not guilty on count 3. He was sentenced to state prison on counts 1 and 2—the sentences to run concurrently; and he was allowed credit for 141 days served prior to sentencing. On his appeal from that judgment, he contends that he was denied his constitutional right to

present during the trial; the court erred in receiving evidence of flight; and he was denied effective assistance of counsel.

In case No. A-257531, wherein he had been convicted of attempted rape, probation had been granted. Probation had been revoked and reinstated on condition that defendant serve six months in county jail. The reinstated probation was revoked and the defendant was sentenced to state prison. On his appeal from the judgment he contends that he was denied credit for presentence time served in jail.

In case numbers A-418054 and A-419034 (consolidated in trial court, wherein the charge in A-41854I was count 1, and the charge in A-419034 was count 2), defendant had pleaded guilty to count 2 (violation of Health & Saf. Code, § 11911); and count 1 (case No. A-418541) was dismissed. He was sentenced to state prison; execution of the sentence was suspended; and probation was granted. Probation was revoked, and the defendant was sentenced to state prison.

In case No. A-427041, the defendant had pleaded nolo contendere to burglary of the second degree; proceedings therein were suspended; and probation was granted. Probation was revoked, and he was sentenced to county jail. On his appeal from the judgment he contends that he was denied credit for presentence time served in jail.

People v. Molina

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WOOD, P. J.

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