>P. v. Hannah

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Filed
7/1/13  P. v. Hannah CA5

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,        Plaintiff and Respondent,        v.   TERRY LEE HANNAH,        Defendant and Appellant.

F063034   (Super. Ct. No. CRF34990)     >OPINION

 

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tuolumne
County.  Eleanor Provost, Judge.

            Gabriel
Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Angelo
S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.     

-ooOoo-

            Following a jury trial, appellant Terry Lee Hannah was
convicted of making criminal threats
(Pen. Code, § 422)href="#_ftn1"
name="_ftnref1" title="">^[1] and exhibiting
a deadly weapon (§ 417, subd. (a)(1)). 
Outside the presence of the jury, Hannah admitted that he had suffered a
prior conviction for a serious and/or violent felony (§ 667, subds.
(b)-(i)) and that he had served a prior prison term (§ 667.5, subd.
(b)).  The trial court sentenced Hannah
to an aggregate term of five years in state
prison.     

            On appeal,
Hannah contends that his constitutional right to be present at trial was
violated.  We agree and therefore need
not address his further contention that application of section 4019 violated
his equal protection rights.  The judgment is reversed.    

STATEMENT OF THE FACTS

            On March 7,
2011, Myron Myers heard yelling coming from Hannah’s mobile home located next
to his.  Myers then heard knocking at his
own door.  When he answered, Hannah ran
toward him, pointed a crossbow at him and said, “I’m going to kill
communists.”  Myers told Hannah there
were no communists there, to which Hannah placed the crossbow under Myers’
chin, tilting it back and said, “Well, I’ll kill you, then.”  Myers tried to get the crossbow out of his
face, but Hannah began punching him in the chest with his right hand.  Hannah, who had his finger on the trigger of
the crossbow as he pointed it at Myers, screamed, “I’m going to kill you” a
total of three times.  As Myers attempted
to get the crossbow out of his face, Hannah stumbled off of the porch.  Hannah then swung the crossbow at Myers again
and said two more times that he was going to kill him.  Myers was able to get inside his residence,
lock the door and call 911. 

            That same
day, Amy Conway, whose grandparents own the mobile home park, was at the mobile
home park and heard Hannah walking around, moaning, and chanting her
grandmother’s name.  Conway advised her
grandmother to stay inside and lock the door. 
As Conway was leaving her grandmother’s home, she heard a dog bark and
Hannah jumped up from behind a bush with something in his hand.  Conway called 911 and sheriff’s deputies
arrived.  Conway identified Hannah to
them and, as she did so, Hannah yelled and screamed at Conway. 

            When the
officers saw Hannah, he was agitated and wearing a 10-inch-long military style
survival knife strapped to his waist.  He
also had a pocket knife on his person.  A
crossbow without an arrow was located inside Hannah’s vehicle, parked nearby.href="#_ftn2" name="_ftnref2" title="">^[2]  Another bow and a separate arrow were located
in Hannah’s residence.href="#_ftn3"
name="_ftnref3" title="">^[3]  As the officers were leaving to take Hannah
to jail, Hannah stated, “First chance I get, I’m going to kill that bitch
[referring to Conway] and I’m going to kill you, too [referring to one of the
officers].”  

DISCUSSION

I.       
CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL

            Hannah
contends that his constitutional right to confront witnesses against him under
the federal Constitution, as well as his state constitutional and statutory
rights, were violated when the trial court failed to ensure his presence during
“a significant portion” of the complaining witness’s testimony.  We agree. 


Background

            The
reporter’s transcript in this case indicates that jury selection began on June
29, 2011, at 1:28 p.m.  At a bench
conference toward the end of jury selection, Hannah’s trial counsel informed
the trial court that Hannah had told him he had kidney stones and “very badly”
needed to use the restroom.  The trial
court stated that it was “almost done” and it would then “break.”  A short while later,href="#_ftn4" name="_ftnref4" title="">^[4] at 2:20 p.m., a “short recess” was taken. 

            Jury
selection resumed at 2:31 p.m.; Hannah was present.  Jury selection concluded and the jurors were
sworn.  The parties gave openings
statements, and Conway was called as the prosecution’s first witness at 3:03
p.m.  Myers, the complaining witness, was
called to the stand and took the oath at 3:13 p.m.  Immediately thereafter, defense counsel
stated, “Your Honor, we have the same issue. 
Can he be excused?”  The trial
court replied, “He can be excused, but I’m not taking a break,” to which Hannah
replied, “Okay. Thank you.”  The
reporter’s transcript then notes “(Leaves the courtroom),”  “(Pause in the proceedings),” and “(TIME
NOTED: 3:14 P.M.).”  After the “pause,”
the prosecution then began its direct examination of Myers.  Myers testimony concluded around
3:31 p.m. (direct examination 3:14 to 3:23 p.m.; cross-examination
3:23 to 3:29 p.m.; redirect examination 3:29 to 3:30 p.m.; and recross-examination
from 3:30 to 3:31 p.m.).  Next, the two
officers at the scene testified; the first beginning at 3:32 p.m. and the
second at 3:47 p.m., concluding close to 4:03 p.m.  There is no mention in the reporter’s
official transcript of when Hannah returned to the courtroom, but following a
bench conference, the trial court took a recess for “five minutes, but five
only” to allow defense counsel to discuss with Hannah whether he wished to
testify.  The recess is recorded from
4:08 p.m. to 4:13 p.m.  Hannah chose not
to testify and court adjourned at 4:21 p.m. 


            The minute
order for the afternoon of June 29, 2011, sheds no additional light on the time
frame in which Hannah was absent.  The
minute order mentions only that a crossbow was marked as an exhibit; that the
district attorney designated Deputy Egbert as lead investigator; that the
prospective jurors were called and examined and lists the numbers of those
jurors sworn and empanelled; that the trial court ordered witnesses excluded
from the courtroom; and that both parties made an opening statement.  There is nothing in the minute order noting
any request or action by Hannah.    

>Applicable
Law and Analysis

            “An
appellate court applies the independent or de novo href="http://www.mcmillanlaw.com/">standard of review to a trial court’s
exclusion of a criminal defendant from trial, either in whole or in part,
insofar as the trial court’s decision entails a measurement of the facts
against the law.”  (People v. Waidla (2000) 22 Cal.4th 690, 741.)

            Our Supreme
Court has summarized the federal law governing a defendant’s presence at trial
as follows:  “‘A criminal defendant’s
right to be personally present at trial is guaranteed by the Sixth and
Fourteenth Amendments of the federal Constitution .…  [Citations.] 
A defendant, however, “does not have a right to be present at every
hearing held in the course of a trial.” 
[Citation.]  A defendant’s
presence is required if it “bears a reasonable and substantial relation to his
full opportunity to defend against the charges.”  [Citation.]’” 
(People v. Lucero (2000) 23
Cal.4th 692, 716-717; see People v.
Waidla, supra, 22 Cal.4th at p. 742.) 
The standard under sections 977 and 1043 is similar.  “‘[T]he accused is not entitled to be
personally present during proceedings which bear no reasonable, substantial relation
to his opportunity to defend charges against him .…  [Citation.]’ 
[Citation.]”  (>People v. Ervin (2000) 22 Cal.4th 48,
74; People v. Waidla, supra, at p.
742.) 

            Here,
Hannah had both a statutory and a constitutional right to be present during the
testimony of the complaining witness. 
Had Hannah been present, he could have assisted his attorney in
questioning the testimony Myers gave against him.  Myers’s testimony was the only direct
evidence of Hannah’s actions leading to the charged offenses.  Accordingly, Hannah’s presence bore a
reasonable and substantial relationship to his ability to defend the charges
against him.  (People v. Lucero, supra, 23 Cal.4th at pp. 716-717.)

            Nor did
Hannah validly waive his right to be present under state or federal law.  Section 977, subdivision (b)(1), states that
in felony prosecutions “the accused shall be present” at certain proceedings,
including those during portions of trial “when evidence is taken before the
trier of fact,” “unless he or she shall, with leave of court, execute in open
court, a written waiver of his or her right to be personally present, as
provided by paragraph (2).”  Section 977,
subdivision (b)(2) further provides “[t]he accused may execute a written waiver
of his or her right to be personally present, approved by his or her counsel,
and the waiver shall be filed with the court.” 
Section 1043 provides that a felony defendant “shall be personally
present at the trial,” (§ 1043, subd. (a)), but that, after the trial has
commenced, the trial may continue in the defendant’s absence if (1) the
defendant persists in disruptive behavior after being warned (§ 1043,
subd. (b)(1)); the defendant in a noncapital case is voluntarily absent
(§ 1043, subd. (b)(2)); or (3) the defendant waives his right to be
present in accordance with section 977 (§ 1043, subd. (d)).  

            Our Supreme
Court in People v. Gutierrez (2003)
29 Cal.4th 1196 (Gutierrez) addressed
the interplay between sections 977 and 1043 and concluded that

“[S]ection 977, subdivision (b)(1)’s presence
requirement does not preclude a defendant from being ‘voluntarily absent’
during the taking of evidence under section 1043, subdivision (b)(2).  Section 977, subdivision (b)(1), provides
that under certain circumstances, a defendant may execute a written waiver of
the right to presence.  Under that
provision, a trial may commence even in the defendant’s absence if the
defendant executes a written waiver. 
(§ 977, subd. (b).)  For
example, a defendant may be absent when the jury is selected, but he cannot be
absent from the entire trial without ever appearing.  But when a trial has commenced in a
defendant’s presence, section 1043 applies. 
As relevant here, section 1043, subdivision (b)(2), provides that a
defendant’s voluntary absence does not prevent the trial from continuing.  We perceive that these statutes address
different concerns and do not conflict; rather, executing a written waiver and
being voluntarily absent are treated as different events under these two
statutes.[href="#_ftn5" name="_ftnref5" title="">^[5]]”  (Gutierrez,
supra, 29 Cal.4th at pp. 1203-1204.)

Accordingly, because Hannah “was present when the trial
began, section 1043, subdivision (b)(2), governs, notwithstanding section 977,
subdivision (b)(1)’s presence requirement.” 
(Gutierrez, supra, 29 Cal.4th
at p. 1204.)      

            Here, there
is no evidence that Hannah was disruptive in court and therefore no claim that
Hannah’s behavior allowed the complaining witness to testify in his
absence.  Instead, we look to see whether
Hannah was voluntarily absent under section 1043.  That section does not define “voluntarily
absent,” but Black’s Law Dictionary defines “voluntary” as “[u]nconstrained by
interference; not impelled by outside influence,” and “voluntarily” as
“[i]ntentionally; without coercion.” 
(Black’s Law Dict. (8th ed. 2004) p. 1605, col. 2.)  To determine whether a defendant is absent
voluntarily under section 1043, a court must look at the “‘totality of the
facts.’”  (Gutierrez, supra, 29 Cal.4th at p. 1205.) 

            In >Gutierrez, the court found no error to
proceed with trial in defendant’s absence where the defendant refused to leave
court lockup, and refusal was confirmed in the lockup in the presence of
defense counsel, bailiff, and court reporter. 
(Gutierrez, supra, 29 Cal.4th
at p. 1206.)

“[U]nder section 1043, subdivision (b)(2), a trial court
may continue a trial in a custodial defendant’s absence after the trial has
commenced in the defendant’s presence – without first obtaining the defendant’s
written or oral waiver of the right to presence – if other evidence indicates
the defendant has chosen to be absent voluntarily.  While a defendant’s express waiver in front
of the judge might be the surest way of ascertaining the defendant’s choice, it
is not the only way.  A defendant’s
‘consent need not be explicit.  It may be
implicit and turn, at least in part, on the actions of the defendant.’  (United
States v. Watkins (7th Cir. 1993) 983 F.2d 1413, 1420, fn. omitted;
[citation].)  In determining whether a
custodial defendant who refuses to leave the lockup is ‘voluntarily absent’
(§ 1043, subd. (b)(2)), a trial court should take reasonable steps to
ensure that being absent from trial is the defendant’s choice.”  (Gutierrez,
supra, at p. 1206.) 

            Here,
during trial proceedings, Hannah, through counsel, asked to be excused, noting
that Hannah had the “same issue.” 
Despite respondent’s argument to the contrary, we infer that to mean
Hannah’s urgent need to again use the restroom was due to his kidney stone
condition.  When the trial court informed
Hannah that he could be excused, but it was not suspending proceedings, Hannah
responded, “Okay.  Thank you,”
acknowledging the court’s decision, and left the courtroom.  The trial court was aware that Hannah was
suffering from kidney stones requiring the need to use the restroom when it
excused Hannah from the courtroom, but failed to recess the trial.  There is no evidence in the record that
Hannah’s medical condition was feigned. 
(See, e.g., People v. Rogers
(1957) 150 Cal.App.2d 403, 413 [self-induced medical condition for the purpose
of disrupting the proceedings is a waiver of the right to be present].)  There is nothing in the record to suggest
that Hannah was informed by counsel or the trial court that he had a right to
be personally present at all stages of the proceeding.  Nor can we say that the trial court took
“reasonable steps to ensure that being absent from trial” was Hannah’s
choice.  (Gutierrez, supra, 29 Cal.4th at p. 1206.)  Although Hannah left the courtroom, we cannot
conclude that his absence during the testimony of the complaining witness was
voluntary, given his indication that his departure to leave was due solely to
his kidney stone condition.

            We turn now
to the question of whether the violation of Hannah’s right to be present
resulted in prejudice or violated his right
to a fair and impartial trial.  (>People v. Lucero, supra, 23 Cal.4th at
p. 717.)  Under the federal Constitution,
error pertaining to a defendant’s presence is evaluated under the harmless beyond
a reasonable doubt standard set forth in Chapman
v. California (1967) 386 U.S. 18, 23. 
(People v. Robertson (1989) 48
Cal.3d 18, 62; see Campbell v. Rice
(9th Cir. 2005) 408 F.3d 1166, 1171-1172.) 
Error under sections 977 and 1043 is state law error only, and therefore
is reversible only if “‘it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of the
error.’  (People v. Watson (1956) 46 Cal.2d 818, 836.)”  (People
v. Jackson (1996) 13 Cal.4th 1164, 1210, 1211; see also >People v. Mayfield (1997) 14 Cal.4th
668, 738-739.) 

            The record
is not clear as to how long Hannah was absent, but as Hannah notes, even if he
was able to return to the courtroom within five minutes, he still would have missed
more than half of the direct testimony
of the complaining witness, the only direct testimony against him.href="#_ftn6" name="_ftnref6" title="">^[6]  In addition, the record does not indicate
that there was a break in the proceedings before the witness was excused.  Had such a break occurred, it would have
allowed Hannah’s trial counsel to adequately summarize Myers’ testimony for
Hannah and, in essence, allow Hannah to assist in cross-examination of the witness. 

            We
therefore conclude that Hannah was prejudiced by his absence because his
presence was necessary for an “opportunity for effective cross-examination,”
for purposes of the Sixth Amendment confrontation clause (Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17); or would
have “contribute[d]” to the trial’s “fairness” in any marginal way, for
purposes of the Fourteenth Amendment’s due process clause (Kentucky v. Stincer, supra, at p. 745); or bore a “‘“‘reasonably
substantial relation to the fullness of his opportunity to defend …,’”’” for
purposes of section 15 of article I of the California Constitution and also
sections 977 and 1043 of the Penal Code 
(People v. Bradford (1997) 15
Cal.4th 1229, 1357).

 

>DISPOSITION

            The judgment is reversed. 


 

 

                                                                                                            _____________________

Franson, J.

WE CONCUR:

 

 

_____________________

Poochigian, Acting P.J.

 

 

_____________________

Detjen, J.