Filed 8/21/26 P v. Gordon CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A171375
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. 17-CR-027923)
TERRY GORDON,
Defendant and Appellant.
Terry Gordon (appellant) appeals from his convictions for two counts of
assaulting a peace officer. We reject his various claims and affirm.
BACKGROUND
In June 2024, a jury convicted appellant of two counts of assaulting a
peace officer (Pen. Code, § 245, subd. (c)),1 and found true allegations of eight
prior convictions. The trial court sentenced appellant to 9 years 116 days in
prison.
1 All undesignated statutory references are to the Penal Code.
We omit
background facts about the offenses, which are not relevant to our resolution
of the appeal.
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DISCUSSION
I. Appellant’s Absence From Trial
Appellant argues reversal is required because he was not personally
present for any part of his trial. We reject the claim.
A. Legal Background
“A criminal defendant’s right to be present at trial is protected under
both the federal and state Constitutions.” (People v. Gutierrez (2003) 29
Cal.4th 1196, 1202.) “Sections 977 and 1043 implement the state
constitutional protection.” (Ibid.; see § 1043, subd. (a) [“Except as otherwise
provided in this section, the defendant in a felony case shall be personally
present at the trial”].) “A defendant’s right to presence, however, is not
absolute. The high court has stated that a defendant’s ‘privilege may be lost
by consent or at times even by misconduct.’ ” (Gutierrez, at p. 1202.)
Section 1043, subdivision (f)(1) provides, “A trial shall be deemed to
have commenced in the presence of the defendant for purposes of subdivision
(b),[2] . . . if the court finds, by clear and convincing evidence, all of the
following to be true: [¶] (A) The defendant is in custody and is refusing,
without good cause, to appear in court on that day for that trial. [¶] (B) The
defendant has been informed of their right and obligation to be personally
present in court. [¶] (C) The defendant has been informed that the trial will
proceed without the defendant being present. [¶] (D) The defendant has been
informed that they have the right to remain silent during the trial. [¶] (E)
2 Section 1043, subdivision (b) sets forth circumstances under which
“[t]he absence of the defendant in a felony case after the trial has commenced
in their physical presence shall not prevent continuing the trial to, and
including, the return of the verdict,” including, “(2) Any prosecution for an
offense which is not punishable by death in which the defendant is
voluntarily absent.”
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The defendant has been informed that their absence without good cause will
constitute a voluntary waiver of any constitutional or statutory right to
confront any witnesses against them or to testify on their own behalf. [¶] (F)
The defendant has been informed whether or not defense counsel will be
present.” The statute provides the court “shall state on the record the
reasons for the court’s findings and shall cause those findings and reasons to
be entered into the minutes,” and directs that, “[i]f the trial lasts for more
than one day, the court is required to make the findings required by this
subdivision anew for each day that the defendant is absent.” (§ 1043,
subd. (f)(2)–(3).)
B. Additional Background
The complaint was filed in September 2017 and appellant was held
without bail. An information was filed in March 2019.
In December 2020, a hearing minute order indicated that appellant
refused to appear in court. Nearly three years later, the trial court issued an
order documenting “some 24 refusals to come to court dating back to
December of 2020” and ordered that, on November 29, 2023, should appellant
“once again refuse to come to court that he be extracted from his cell and
transported to” the trial court “to set trial dates and for the defendant to be
admonished by the court pursuant to Penal Code Section 1043.5.” (Boldface
& italics omitted.) The order authorized the sheriff’s office to use “any
reasonable force necessary.”
On November 29, 2023, the court (Judge Delucchi), counsel, and a court
reporter went to appellant in a “holding tank” at the courthouse. The trial
court admonished appellant: “pursuant to Penal Code section 1043, I am
hereby informing you of your right and obligation to be personally present in
court for your trial. [¶] I’m informing you that your trial will . . . proceed
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without your being present. [¶] I’m informing you that you have a right to
remain silent during your trial. I’m informing you that your absence from
your trial without good cause will constitute a voluntary waiver of any
Constitutional or Statutory Right to confront any witnesses against you or to
testifying on your own behalf, and I’m informing you that your Defense
Counsel will be present at your trial. [¶] Your trial date is hereby set for
March 11, 2024 with a readiness date of March 7th, 2024. Your attorney is
here and can talk to you. We’ll see you in March. Thank you.”
Appellant refused to appear at court hearings on February 1, February
16, and March 11, 2024. On March 11, the trial court ordered that, on March
13, appellant “be extracted from his cell using reasonable force” and brought
to court. On March 13, appellant was transported to the courthouse but
refused to come to the courtroom. The trial court (Judge Cramer), attorneys,
and a court reporter again went to appellant in the holding cell. The
reporter’s transcript indicates appellant was “screaming out loud” throughout
the attempted proceeding, which the court concluded after finding, “He’s not
going to hear anything I say.” After returning to the courtroom, the trial
court stated for the record that, before the holding cell door was opened, the
court could see appellant sitting calmly in a wheelchair. As soon as the door
opened, appellant “began wailing . . . , just kind of an uncontrolled wail” and
appeared to be “making every effort to fall forward out of the wheelchair onto
the floor.” The court “was unable to read him the Penal Code Section 1043
admonition that the trial would proceed in his absence.” Although
appellant’s conduct “appeared contrived,” it was possibly “due to some mental
illness,” so the court found substantial evidence of incompetence to stand
trial, appointed two psychiatrists to review competency, and suspended trial
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proceedings. On May 1, after considering two psychiatric reports, the trial
court found appellant competent to stand trial. Trial was set for May 20.
On May 20, 2024, appellant again refused to come to court. The trial
court (Judge Madden) stated, “For the record, this is a case from 2017. The
Court reviewed just the history in particular of [appellant] not coming to
court. There was an extraction order that was filed on November 28th, 2023,
that was signed by Judge Paul Delucchi. This is after there had been 23
refusals on the part of [appellant]. [¶] [Appellant] was brought in, and Judge
Delucchi did admonish him pursuant to Penal Code section 1043. He has
been fully admonished, and we are going to proceed in his absence.” The
court directed, “[E]very day the Court is in session, the order forthwith is that
the Sheriff’s Department makes an attempt to bring [appellant] in.”
On May 21, 2024, the bailiff informed the court that appellant refused
to come to court, and the court stated, “[F]or the record, he was fully
admonished pursuant [to] Penal Code section 1043 on November 29th of last
year. We are proceeding.” Jury selection took place on May 22 and 28, 2024.
The minute orders for both days indicate that appellant refused to appear
and that trial proceedings would continue pursuant to section 1043. On each
day of the jury trial up to and including the reading of the verdict, appellant’s
refusal to appear was documented and the trial court stated it was
proceeding pursuant to section 1043.
C. Analysis
Appellant argues the trial court erred in failing to expressly make each
section 1043, subdivision (f)(1) finding on each day of trial. We need not
decide this issue—or whether the claim is forfeited, as the People contend—
because any error was harmless.
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Appellant contends the error is structural, but our Supreme Court has
repeatedly held otherwise. (See People v. Perry (2006) 38 Cal.4th 302, 312
[“Erroneous exclusion of the defendant is not structural error that is
reversible per se, but trial error that is reversible only if the defendant proves
prejudice”]; People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 23 [same].)
Appellant argues these cases involved the exclusion of the defendant from
only part of the proceedings, rather than from the entire trial, but the
Supreme Court’s holdings regarding reversible error were not so limited.
The parties dispute the appropriate standard of prejudice, but this we
also need not decide. Appellant had refused to come to court dozens of times
for well over three years before trial started. The trial court twice ordered
appellant forcibly removed from jail to come to court, and both times
appellant refused to leave the court holding tank. Both times, the bench
officer went to the holding tank to either deliver or attempt to deliver the
section 1043, subdivision (f) admonishments. On each day of trial, deputy
sheriffs attempted to transport appellant to court and each day appellant
refused. There is no basis whatsoever in the record to find that, had
appellant been readmonished each trial day and/or had the trial court made
additional express findings on the record, appellant would have appeared in
court for any part of his trial. We hold any error harmless beyond a
reasonable doubt.
II. Defense Counsel’s Motion to Withdraw
Appellant argues the trial court abused its discretion in denying
defense counsel’s motion to withdraw. We disagree.
A. Additional Background
In January 2024—after appellant had been refusing to come to court
for more than three years, and two months before the then-set trial date—
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defense counsel filed a motion to withdraw. Counsel had been representing
appellant since October 2021. Counsel submitted a declaration averring an
“irreconcilable conflict of interest has developed,” appellant “refuses to meet
with me . . . and refuses to cooperate in any way with his defense,” and
appellant “has written me requests to withdraw and has complained to the
State Bar about my representation on several occasions.”
A hearing on the motion was held on March 13, 2024, the second day
appellant was forcibly brought to the courthouse but refused to come to the
courtroom. Defense counsel reported that, before the hearing, appellant
“indicated he wanted to show me some papers that I couldn’t really see. And
he said I was under investigation. And then he left the interview room.” The
papers were apparently recent State Bar complaints about defense counsel.
The prosecutor stated, “[W]e know that he’s kind of played the same
game with [the] Public Defender’s Office and made them kind of have to
withdraw because of the complaints that he was making about them.[3] [¶] So
I think by letting [defense counsel] out, we’re just going to get a new attorney
and go through the same thing again. And at what point do we say these are
just games being played by the defendant and we can’t just age this case
because he’s doing that.” After reviewing appellant’s history of not coming to
court, the court told defense counsel, “I understand . . . his refusal to ever
communicate with you makes it very, very difficult for you to effectively
represent him. But the way I view it is that is a conscious tactical decision on
his part and not an inability.”
Defense counsel argued, “[M]y limited understanding of his history on
this case with the other attorneys was he wasn’t vehemently opposed to their
3 The public defender’s office declared a conflict of interest in October
2021, and appellant’s trial counsel was appointed at that time.
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representation to the degree that he has communicated to me. He does write
me letters. He does write letters that I take to be threatening. Not
physically threatening. He’s complained to the State Bar. I think he merely,
with the Public Defender’s Office, but I can’t say with any certainty, he just
filed a complaint. And they said well, we got a conflict because he filed a
complaint. He’s filed at least two complaints against me. [¶] . . . [T]his
relationship I have with him has grown to the point where it’s irreconcilable
in getting us back together. I just feel it’s in my client’s best interest that I
bring this withdraw motion to be granted and he gets a shot with some other
attorney through his approval. He clearly does not want to be represented by
me. Just no doubt in my mind. And he refuses to participate in any
meaningful communication about this case with me.”
The court noted, “[I]f [appellant] wanted to come to court and run a
Marsden motion, I’d be happy to hear it, but he’s not even doing that.”4 The
court agreed with defense counsel that appellant “is clearly hindering your
ability” to represent him, but found that “he is doing that consciously, not
because he’s unable to.” The court denied the motion to withdraw.
B. Analysis
“The determination whether to grant or deny a motion by an attorney
to withdraw is within the sound discretion of the trial court and will be
reversed on appeal only on a clear showing of abuse of discretion.” (People v.
Sanchez (1995) 12 Cal.4th 1, 37, disapproved on another ground by People v.
Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) “The case law establishes that
the court has discretion to deny an attorney’s request to withdraw where
4 Appellant made numerous motions pursuant to People v. Marsden
(1970) 2 Cal.3d 118 earlier in the proceedings when the public defender was
representing him.
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such withdrawal would work an injustice or cause undue delay in the
proceeding. [Citations.] But the court’s discretion in this area, as elsewhere
in the law, is one to be exercised reasonably.” (Mandell v. Superior Court
(1977) 67 Cal.App.3d 1, 4.)
The trial court could reasonably find that appellant’s conduct in
refusing to talk to defense counsel and filing complaints against counsel was
a conscious effort to further delay the trial, that the conduct would likely be
repeated with any subsequent counsel as it had been with his previous
counsel, and that granting the motion would therefore cause undue delay in
the proceeding. Appellant has failed to establish an abuse of discretion.
III. Ineffective Assistance of Counsel
In his opening brief, appellant argues trial counsel was constitutionally
ineffective in failing to object to the dual use of facts at sentencing. However,
in his reply brief, appellant declines to respond to arguments raised in the
response brief, noting that he “ha[s] been released from prison after serving
the custodial term imposed by the trial court.” Appellant does not argue this
claim is not mooted by his release, and we find it has been so mooted.5
5 “Although a defendant’s excess custody credits may be applied to
reduce a fine imposed by the trial court, such excess credits may not be
applied to reduce victim restitution, a restitution fine, the court operations
assessment, or the court facilities assessment.” (People v. Petri (2020) 45
Cal.App.5th 82, 92.) No reducible fines were imposed by the trial court.
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DISPOSITION
The judgment is affirmed.
SIMONS, J.
We concur.
JACKSON, P. J.
CHOU, J.
(A171375)
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