Metropolitan News-Enterprise


Friday, May 1, 2015


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S.C. to Decide Constitutionality of Trying Pro Per in Absentia




The California Supreme Court has agreed to decide whether the state and federal constitutions permit a defendant who absconded while representing himself to be tried in absentia and without counsel.

The justices, at their weekly conference in San Francisco Wednesday, voted unanimously to grant review in People v. Espinoza (2015) 233 Cal. App. 4th 914.

The Sixth District Court of Appeal held in its Jan. 28 ruling that Zeferino Espinoza Jr.’s rights were violated because he did not waive his trial-related constitutional rights. It also held that the error was structural, requiring reversal.

A Santa Clara Superior Court jury found Espinoza guilty of two counts of possession of a firearm by a felon, and of possession of morphine, possession of marijuana, possession of ammunition by a felon, and possession of diazepam without a prescription.  The jury acquitted him of making criminal threats and attempting to dissuade a witness by use or threat of force.  

Petrial Hearings

The jury was selected after a series of pretrial hearings on motions to replace the public defender as appointed counsel. After all of the motions were denied, Espinoza moved a week before trial to represent himself.

Judge Paul Bernal denied that motion as well, and denied a defense motion for continuance. Then, in the middle of jury selection, the judge reversed himself, allowed Espinoza to represent himself, denied his motion for a one-day continuance, dismissed the public defender, and proceeded with the trial.

Espinoza, however, failed to appear on the second day of trial, or thereafter until almost a month after trial. Bernal denied a motion by the defendant—by then represented by an attorney—for a new trial.

The judge found that the failure to appear was “volitional.” Espinoza told the presentence investigator that he stopped going to court because a lawyer told him he could get a mistrial.

Bernal sentenced him to 32 months in prison. He was tried separately for bail-jumping, convicted, and sentenced to 90 days in jail.

That conviction was affirmed in a separate appeal.

The original conviction had to be reversed, however, Justice Miguel Marquez wrote for the Court of Appeal.

Cases Distinguished

The justice acknowledged that a number of courts have upheld convictions where a defendant represented by counsel was voluntarily absent from court. “But when both the defendant and counsel are absent, proceeding with trial implicates not only the right to be present, but the full panoply of trial rights,” Marquez wrote.

He cited California and non-California cases upholding convictions in cases where defendants chose not to come to court despite knowing that the trial would proceed without them. But that was not the case here, he pointed out.

Marquez wrote:

“The Attorney General is correct that defendant voluntarily failed to appear for trial, thereby absenting himself from the proceedings….But unlike the defendants [the cited] absence cases, defendant here did not absent himself on the record.  Furthermore, nothing in the record shows he knew the proceedings would continue without him....And if defendant did not know the trial was proceeding without him, he could not have known he was waiving his fundamental trial rights—including his right to confront the prosecution’s witnesses, his right to present a defense, and his right to present argument.”

Sympathy, but Reversal

Marquez expressed sympathy for the trial judge, given the defendant’s “numerous attempts to manipulate the proceedings and frustrate the orderly administration of justice.” But while the bail-jumping conviction was an appropriate sanction for his obstructionism, the loss of his right to defend himself at trial was not, the jurist concluded.

Instead, he wrote, the judge could have appointed standby counsel at the time he granted the self-representation motion, appointed counsel in mid-trial, or warned defendant while he was still representing himself that trial would continue without him if he were voluntarily absent.

The justice also concluded that the denial of a one-day continuance at the time the defendant was granted the right to represent himself was an abuse of discretion and a separate ground for reversal. 


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