People v. Concepcion

WERDEGAR, J., Concurring. I agree with the majority that the period of a defendant’s voluntary absence from trial precipitated by the defendant’s escape from custody includes the time it reasonably takes to return the defendant to court after he or she is again in custody. I also agree a trial court’s factual determination that a delay in returning a defendant to court was reasonable must be upheld if supported by substantial evidence. But here the trial court made no such factual determination, simply telling the parties it had been informed defendant could not be brought back to court until the day after his recapture. That statement is not a factual determination and, as it did not follow an evidentiary hearing, it certainly is not a factual determination reviewable for substantial evidence.

Nonetheless, I believe the judgment must be affirmed because defendant never argued to the trial court that the authorities unreasonably delayed his return. Under the circumstances, defendant’s failure to make that argument implied he agreed the delay was reasonable, and the court therefore had no obligation to consider the matter further. People v. Connolly (1973) 36 Cal.App.3d 379 [111 Cal.Rptr. 409], which defendant cites in arguing that the trial court had a sua sponte duty to consider whether his absence continued to be voluntary after he was returned to custody, is distinguishable. In Connolly, the court initially determined the defendant’s absence was voluntary, but reconsidered the question after the defendant raised it in a motion for new trial. (Id. at p. 386.) Defendant here did not seek reconsideration of the trial court’s ruling that his absence during the second morning of trial was voluntary. Nor did he raise in the trial court the new question whether what had been a voluntary absence became involuntary as a result of an unreasonable delay in transporting him to court after his return to custody.

I also wish to avert any misconception that might flow from the majority’s discussion of People v. Granderson (1998) 67 Cal.App.4th 703 [79 Cal.Rptr.2d 268], cited for the unremarkable conclusion that delays in the proceedings are disruptive. (Maj. opn., ante, at pp. 83-84.) Granderson concerned the point at which trial commences for purposes of Penal Code [87]section 1043, subdivision (b)(2), conferring discretion to proceed in the defendant’s voluntary absence “after the trial has commenced.” It was found there that the resources, time and energy expended by court and counsel and the inconvenience to the jurors summoned to trial required a finding a trial commences no later than the time a jury is impaneled. (Granderson, at p. 708.) Here there is no need to consider the factors discussed in Granderson, as defendant’s absence unquestionably followed the commencement of trial. Those factors are not relevant to the issue actually presented by this case: whether defendant’s failure to appear at trial after his recapture was or was not voluntary. Neither are they relevant to an issue the majority discusses that is not presented by this case: whether avoiding disruptions such as those enumerated in Granderson justifies proceeding in a defendant’s voluntary absence. (See maj. opn., ante, at pp. 83-84.) A court would not abuse its discretion by proceeding in a defendant’s voluntary absence even if a delay in trial would be only minimally disruptive. The majority’s discussion of Granderson therefore is unnecessary and potentially misleading.