Metropolitan News-Enterprise


Friday, March 7, 2003


Page 1


Conviction of Defendant Who Refused to Leave Lockup Upheld


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Los Angeles Superior Court did not err in proceeding without a defendant who refused to leave the court lockup to attend his trial after the first day, the California Supreme Court ruled yesterday.

The unanimous court said a defendant who refuses to come out of a holding cell for the beginning of a court session is “voluntarily absent,” so the trial may proceed and no express waiver of the right to attend is required.

The justices reinstated Raul Gomez Gutierrez’s conviction for an April 2000 robbery outside a South Gate nightclub. The conviction had been overturned by a divided panel in Div. Seven of this district’s Court of Appeal, with Justice Earl Johnson Jr. and the late Presiding Justice Mildred Lillie in the majority and Justice Fred Woods dissenting.

Div. Seven held that Penal Code Sec. 1043(b)(2), which allows the court to proceed without a defendant who is present at the beginning of the trial but is later “voluntarily absent,” does not apply to a defendant who is in custody but won’t enter the courtroom.

Gutierrez’s trial began in August 2000, with Gutierrez present and represented by appointed counsel whom he had unsuccessfully attempted to replace via a Marsden motion. Gutierrez complained that his lawyer couldn’t effectively defend him because he did not think he could win.

On the second day, however, Gutierrez would not leave the Norwalk courthouse lockup, claiming his family had hired a new lawyer for him.

No ‘Fun and Games’

Judge C. Robert Simpson Jr. informed counsel that he would proceed without Gutierrez present. The defense attorney then spoke to Gutierrez in lockup, with the bailiff and court reporter present, and told him there was no other lawyer, that no family members were in the courtroom, and that that the judge had “no time for fun and games” and was prepared to try the case without Gutierrez in the courtroom.

Simpson went ahead with the trial, over defense counsel’s objection, instructing the jury not to consider or speculate about the defendant’s absence. At the start of the afternoon session, the bailiff spoke to Gutierrez, then reported he was still unwilling to come to court.

The prosecution presented evidence that Gutierrez and his co-defendant, who pled guilty, had robbed the two victims at gunpoint, then driven away. They were stopped in a vehicle matching the description and partial license plate number given by the victims, and two bills of the same denominations as those taken from the victims were found on Gutierrez’s person.

Gutierrez returned to court on the third and final day of trial for closing arguments. He was convicted of two counts of second-degree robbery and sentenced to six years in prison.

Justice Ming Chin, writing for the high court, distinguished several federal cases holding that defendants who were in custody but would not come to the courtroom were not voluntarily absent.

Cases Distinguished

In one of those cases, Chin noted, the judge had proceeded solely on the basis of defense counsel’s representation that the defendant would remain in the adjacent room where he was being held by the marshal rather than come to court. The other cases, Chin explained, are inapposite because they involved a defendant whose waiver of the right to be present was found to be invalid and another who was actually not in custody.

“Moreover, the underlying premise, that a custodial defendant cannot be absent voluntarily because ‘presence or absence is not within his own control’—is an unrealistic view of a defendant’s volition and resolve to remain absent from court proceedings,” the justice wrote. “A person in custody, as any person, can voluntarily choose to be absent.”

If this were not the case, the justice reasoned, an uncooperative defendant who was unwilling to give an express waiver would have to be dragged into the courtroom, exposing the defendant, the bailiff, and others to injury. The defendant would also be encouraged to disrupt the court proceedings so that he could be taken back out, Chin commented.

The case was argued by La Crescenta sole practitioner Tracy J. Dressner, appointed by the court, for the defendant and Deputy Attorney General David C. Cook for the state.

The case is People v. Gutierrez, 03 S.O.S. 1194.


Copyright 2003, Metropolitan News Company