P. v. Ratcliff

Filed 6/30/08 P. v. Ratcliff CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant James Garfield Ratcliff appeals his conviction by a jury in a trial at which he was not present. Defendant contends that the trial court erred in deeming his absence voluntary because he did not waive his right to be present and the court failed to take reasonable steps to ensure that his absence was voluntary. We conclude that the trial court was justified in proceeding in defendants absence and, further, that defendant did not receive ineffective assistance of counsel because his attorney failed to object when the court advised the jury that his absence was voluntary. Thus, we shall affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant was charged with felony grand theft for unlawfully taking personal property with a value in excess of $400 from a Sears store in Contra Costa County, in violation of Penal Code[1] section 487, subdivision (a). At trial, the Sears loss prevention manager testified that on September 25, 2006, he observed defendant open a jewelry display case, place items from the case into his pocket, and exit the store without paying for the items. A Sears security agent testified that when he approached defendant outside the store, defendant ran through the parking lot and into Macys department store. The police officer who detained defendant in Macys testified that he observed four silver-colored items drop from defendants possession. A Sears employee identified the items as Sears property that came from the jewelry case defendant had been observed opening, and had a value of approximately $550. To the police officer who detained him, defendant admitted taking the items [was] wrong.

During an October 18, 2006 pretrial conference, defense counsel informed the judge that defendant had glaucoma and was scheduled to receive medical treatment. At a readiness conference on March 7, 2007, defendant was directed to provide a doctors note pertaining to his eye condition by March 13, which defendant failed to do. On June 5, prior to jury selection, defendant informed the court that the next morning he had a scheduled appointment with an ophthalmologist at the Pittsburg Health Center. The court completed jury selection and swore in the jury on June 5, with defendant present, and agreed to postpone the commencement of proceedings the next day until 1:30 p.m. sharp so that defendant could go to [his] doctors appointment.

At noon the following day, defense counsel informed the court that defendant was going to be late because he was still at the clinic having a procedure done. When trial was scheduled to begin at 1:30 p.m. defendant was not present. The court delayed the proceedings to allow defense counsel to contact defendant. At 2:35 p.m. defendants attorney advised the court that she had not heard from defendant since noon when he told her he would be late. She stated that she had contacted the Pittsburg Health Center at 1:30 and was informed that defendant was no longer there. She had also spoken with defendants brother-in-law at defendants designated contact number but was unable to locate defendant. She also stated that she had received word that defendant had called the receptionist at her office around 1:30 but did not leave a message.

At 2:35 p.m., the trial judge decided to begin the presentation of evidence in defendants absence: I have some concern that Mr. Ratcliff has been late to court yesterday, and I believe the day before, as well. Although, not this late. And that we had recessed for the entire morning. We now have a jury who has been waiting for over an hour. And, Mr. Ratcliff, although you have advised me doesnt have a cell phone, certainly has the means of contacting you or contacting the court. There are many public phones, and he obviously has family that he can use to communicate with both you or the court, and we have heard nothing. He didnt advise in the morning that his procedure was notor that the appointment was going later until you heard from him at noon. So, Im starting to get the impression that Mr. Ratcliff has not made this trial a priority. So, it is my intention, if hes not here in another five minutes to proceed in his absence. He has voluntarily, in my opinion, absented himself from the proceedings and well continue with the trial in absentia.

Defense counsel objected, advising the court: I do need Mr. Ratcliff here to assist me, especially in light of the fact that theres several witnesses who will be called who didnt testify at the preliminary hearing. I dont know in any detail what these witnesses are going to say. And without his assistance, I cant provide effective assistance of counsel. When the jury returned to the courtroom, the judge stated, Were going to go ahead and proceed. When Mr. Ratcliff arrives, he will join us.

The defendant remained absent throughout the afternoons proceedings. After the court recessed at 4:45 p.m., the clerks office informed the judge that defendant left a message around noon with a callback number that was undecipherable to the clerk.

The next day defendant again was absent. Defense counsel offered no explanation for his absence. The judge asked his attorney whether she had contacted defendant and she responded that despite making additional calls to defendants contact numbers, she had not been in contact with him since noon the preceding day. Defense counsel moved for a mistrial and the court denied the motion. The judge then admonished the jury: Ladies and gentlemen, first of all, you obviously have noticed that Mr. Ratcliff is not here. His absence is voluntary. He has chosen not to appear. You may not consider that in any way in your deliberations. Its merely an explanation why hes not sitting in the chair at counsel table. You may not use that information or that fact for any purpose whatsoever in your deliberations about whether he is guilty or not guilty of the crimes charged here. Trial proceeded to its conclusion on June 8 without defendants reappearance. In closing argument to the jury, defendants attorney argued, I want to address that really briefly and remind you that you cant speculate about why Mr. Ratcliff isnt here. You cant say that must mean that he knows he did something wrong and he doesnt want to face the music or whatever.

The jury found defendant guilty of the charged offense. Although the defendant subsequently wrote the judge purporting to explain his absence,[2] no motion for a new trial was filed. Before imposing sentence on August 28, 2007, the court indicated that it had received the letter but with the defendant present went on to impose sentence. The court sentenced defendant to two years in prison, but suspended execution and with defendants concurrence committed him to the California Rehabilitation Center. Defendant timely filed a notice of appeal.

DISCUSSION

At his trial, a criminal defendant is entitled to be personally present with counsel, and to be confronted with the witnesses against the defendant. (Cal. Const., art. 1, 15; U.S. Const. Amend. VI.) Section 977, subdivision (b)(1) provides: In all cases in which a felony is charged, the accused shall be present . . . during those portions of the trial when evidence is taken before the trier of fact . . . . However, section 1043, subdivision (b) provides that [t]he absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in the case of [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. ( 1043, subd. (b)(2).)[3]

A defendants right to presence is fundamental to our system of justice and guaranteed by our Constitution. [Citation.] Thus, a trial court should not summarily plung[e] ahead with trial in a defendant's absence. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1209.) Instead, a trial court should take reasonable steps to ensure that being absent from trial is the defendants choice. (Id. at p. 1206[defendant who refused to leave lockup was voluntarily absent].) In determining whether a defendant is absent voluntarily, a court must look at the totality of the facts.  (Id. at p. 1205; People v. Connolly (1973) 36 Cal.App.3d 379, 385.) A defendants consent [to waive his right to be present at trial] need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant. (People v. Gutierrez, supra, at p. 1206.) The standard of review with respect to this issue is de novo. (Id. at p. 1202; People v. Waidla (2000) 22 Cal.4th 690, 741.)

Contrary to defendants argument on appeal, the trial judge took reasonable steps before determining that defendant voluntarily waived his right to be present. (See People v. Connolly, supra, 36 Cal.App.3d at p. 385.) Although defendant did not waive his right explicitly, the court reasonably determined that his absence was voluntary based on the totality of the facts. (People v. Gutierrez, supra, 29 Cal.4th at pp. 1204-1205, 1208.) The court had previously directed defendant to provide proof of his eye condition and was aware that he had failed to do so. He had arrived at court late on two consecutive dates prior to June 6. Although a jury had already been sworn, the court accommodated defendant by postponing the mornings proceedings on June 6 so that defendant could attend a scheduled medical appointment. When he failed to appear at 1:30 p.m., the court waited for more than an additional hour while defense counsel attempted to contact defendant. The court was advised that defendant was no longer at the medical clinic where he presumably had been treated, and his family member at the telephone number used by his attorney to contact him did not know his whereabouts. Defendant apparently called both the court clerk and his attorneys office but left no message indicating either that an emergency had befallen him or how he could be reached. Defendant was absent again on June 7 and June 8, without contacting either the court or, apparently, his attorney, and no word was received that defendant had been incapacitated, strengthening the inference that his absence was voluntary. The court gave defense counsel ample opportunity to locate defendant, but her efforts were of no avail and she could provide no explanation for his absence. The judge reasoned that defendant has been through the system a number of times. So I cant give him the benefit of not knowing how the process works. The court made appropriate efforts to determine whether defendant was absent for a reason beyond his control and reasonably concluded that his absence was voluntary. Therefore, it was justified in proceeding with the trial in the defendants absence. Moreover, the defendant did not subsequently present any competent evidence to the court explaining his absence (cf. People v. Connolly, supra, 36 Cal.App.3d 379).[4]

Even were we to assume that the court erred in proceeding without defendant being present, we would conclude that the error was harmless in view of the overwhelming evidence of defendants guilt. Challenges to the denial of a defendants right to be present during all critical stages of the proceedings . . . are subject to harmless error analysis [citations] unless the deprivation, by its very nature, cannot be harmless. (Rushen v. Spain (1983) 464 U.S. 114, 118, fn. 2.) [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Here, any conceivable error was harmless beyond a reasonable doubt. Defendant was observed opening a locked jewelry case, placing items from the case into his pocket, and leaving the store without paying for the items. When approached by security personnel he fled, and when detained hedropped the items from the jewelry case. Also, he admitted to a police officer that he had taken the items. There is no basis to believe that had he been present, honest, fair-minded jurors might very well have brought in not-guilty verdicts. (Id. at pp. 25-26.)

Defendant further contends that his attorneys failure to object to the courts inclusion in its admonition to the jury the statement that his absence was voluntary constituted ineffective assistance of counsel. The court admonished the jury that [defendants] absence is voluntary. He has chosen not to appear. You may not consider that in any way in your deliberations. Its merely an explanation why hes not sitting in the chair at counsel table. You may not use that information or that fact for any purpose whatsoever in your deliberations about whether he is guilty or not guilty of the crimes charged here. Counsel made no objection to this instruction, as a result of which defendant is precluded from asserting on appeal that the court erred in making such a statement (People v. Tyler (1991) 233 Cal.App.3d 1456, 1460), but he argues that his attorney was ineffective in failing to object.

In order to establish a violation of defendants right to effective assistance of counsel, the burden rests on defendant to show both (1) that counsels performance was deficient, and (2) that the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant must demonstrate not only the absence of a tactical reason for the omission [citation] but also that the motion or objection would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876.) Moreover, the defendant bears the burden to prove that  but for counsels purportedly deficient performance there is a reasonable probability the result of the proceeding would have been different.  (People v. Sapp (2003) 31 Cal.4th 240, 263.)

Defendant has not shown that the failure to object was either deficient representation or prejudicial. The courts admonition was for defendants benefit, to preclude the jury from inferring that defendants absence was an admission of guilt or from assuming that his absence could be considered in any way to determine his guilt. While it may not have been necessary to advise the jury that defendants absence was voluntary, the court may have considered it advisable to dispel any possible feeling that the prosecution was overreaching in prosecuting a person who was involuntarily absent. In all events, defense counsel may well have considered that an objection risked drawing attention to the lack of a good explanation for defendants absence, and that by saying nothing the jury was more likely to focus on the courts message that it should disregard defendants absence. (See, e.g., People v. Lopez (2008) 42 Cal.4th 960, 972 [ [dD]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance ].) There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) We cannot say that counsel was ineffective in failing to object to the courts instruction. Moreover, even assuming that a timely objection would have been meritorious, there was no prejudice. (People v. Mattson, supra, 50 Cal.3d at p. 876.) There is no reasonable probability the result of the proceeding would have been different if the jury had not been told that defendants absence was voluntary. (People v. Sapp, supra, 31 Cal.4th at p. 263.)

Defendant also contends that the jury was improperly instructed that flight after crime may constitute consciousness of guilt because [w]hile the instruction was intended to refer to appellants flight after the incident at Sears it could have been interpreted by the jury to refer to appellants absence from the trial. We disagree. In view of the courts explicit admonishment that the jury should not consider defendants voluntary absence for any purpose, and the undisputed evidence that defendant had run from a security officer at the scene, there is no reasonable possibility that the jury would have misunderstood the instruction as defendant speculates.

The Attorney General acknowledges a clerical error in the clerks minute order dated August 28, 2007, which reflects a $170 laboratory analysis fee and a $510 drug education fee that the court did not impose. The minute order should be corrected.

DISPOSITION

The judgment is affirmed. The court is directed to correct the clerical error in the minute order of August 28, 2007, to delete reference to the laboratory and drug education fees.

_________________________

Pollak, Acting P. J.

We concur:

_________________________

Siggins, J.

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Jenkins, J.

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[1] All statutory references are to the Penal Code unless otherwise noted.

[2] In an unsworn letter the defendant stated: on June 6th of 2007, I had lasic [eye surgery] performed on [my] eyes due to glaucoma. I am currently blind in my right eye and partially blind in my left. It was only due to this medical procedure that I [was] unable to make my jury trial court date. Upon the actual date, I was under heavy sedation while in recovery from the operation. I [was] incoherent and would not have been legally competent to stand trial. [] . . . [] I understand that in missing my court date I not only undermined my own integrity, but I also let my family down. There is no way I would have let such happen if I could have physically and mentally been present for my jury trial.

[3] Section 1043 is consistent with rule 43(c)(1) of the Federal Rules of Criminal Procedure (18 U.S.C.), which provides that [a] defendant [in a noncapital felony case] who was initially present at trial . . . waives the right to be present . . . [] (A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial. (Fed. Rules Crim.Proc., rule 43(c)(1)(A), 18 U.S.C.) If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence. (Fed. Rules Crim.Proc., rule 43(c)(2), 18 U.S.C.)

[4] As indicated above, the letter that defendant sent the court was not under oath or penalty of perjury and no motion for relief was made on the ground that defendants absence was beyond his control. We note that the reasons for his absence that defendant gave in his letter are of questionable sufficiency to justify his absence on June 6, and certainly do not justify his continued absence on June 7 and 8.