P. v. Runion

Filed 4/11/07 P. v. Runion CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Shons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Norman Alan Runion was convicted of oral copulation of a sleeping person (Pen. Code,  288a, subd. (f)(1)) and assault with intent to commit oral copulation (Pen. Code,  220, subd. (a)), both felonies. (All further statutory references are to this code.) He contends the judgment must be reversed because the court took the verdict without his presence and failed to use reasonable diligence to procure it.

After the case went to the jury, the decision was made in about an hour. When the verdict was ready to be read, defendant was not at the courthouse. After finding defendant wilfully absented himself, the court took the verdict without his presence. The minute order stated, Defendant is not present, having gone home after being told to stay close[;] he is 30 minutes away. The Court does not want to keep the jurors that long . . . .

In his declaration in support of the motion for new trial, defendants lawyer stated he had told defendant to stay close because they did not know when the jury would complete deliberations. After the lawyer learned the verdict had been reached, he looked in and outside of the courthouse, without success. When he called defendant on his cell phone, defendant stated he had gone home to Lake Forest to change his clothes. At the lawyers instruction, after advising it would take him 30 minutes to return to the Harbor courthouse in Newport Beach, defendant left immediately.

In denying defendants motion for new trial, which was based on return of the verdict in his absence, the judge stated she had exercised reasonable diligence because [she] had [defendants lawyer and the bailiff] look for [defendant] all over the courthouse property, defense counsel had called defendant without answer, and then defendant had called and said he was home. The court also stated defendant was not half an hour away because he did not arrive for at least an hour.

Section 1148 provides that where a felony is charged, the defendant must, before the verdict is received, appear in person, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that the verdict be received in his absence.

In People v. Isby (1947) 30 Cal.2d 879 the court confirmed that in a felony trial, the defendant must be personally present . . . when the verdict is returned [Citations]. (Id. at pp. 893-894.) Isby relied on People v. Beauchamp (1874) 49 Cal. 41, which, without analysis, reversed a judgment based on section 1148 because defendant was not present for sentencing, having absconded after the cause was given to the jury, and before [its] return into Court. (Id. at p. 42.)

Neither the court nor the prosecution satisfactorily explained how the courts actions to procure defendants presence at sentencing were reasonably diligent or why it was appropriate to refuse to wait 30 minutes for defendant to return. The prosecution argues defendant went home after being told not to stray far from the courthouse . . ., but the record shows he was told to stay close. That is different, and there is no evidence as to the meaning of that instruction. It is not unreasonable to include within it permission to go from Newport Beach to Lake Forest to change clothes. Nor does staying close include the requirement that defendant tell someone where he was going.

The court explained it did not want to keep the jury waiting that long, i.e., 30 minutes. Thirty minutes is not that long. The judge also explained she was picking another jury. That is not an explanation for refusing to wait 30 minutes and is hardly a pressing matter[] as the prosecution describes it. The fact that defendant did not actually arrive for 55 minutes is irrelevant because the court did not base its decision on that and had had the verdict read by then.

In addition, there is nothing in the reporters transcript to support the finding that defendant absented himself willfully; except for the statement the judge was picking another jury, all of her verbal statements, scant though they are, were made during the hearing denying the motion for new trial. The clerks order reflects only that defendant had gone home after being told to stay close, was half an hour away, and the court did not want to have the jury wait that long. This is not sufficient to support the finding. Moreover there is no showing why the interests of justice were served by failing to wait half an hour to read the verdict. There was no attempt to satisfy that criterion.

Having determined this was error, however, we also conclude it is not a basis for reversal. We know of no California or United States Supreme Court cases holding this is structural error. The Supreme Court has never held that the exclusion of a defendant from a critical stage of his criminal proceedings constitutes a structural error. (Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1172 [defendants exclusion from in-chambers conference harmless error].) Thus, we use a harmless error standard of review. (Chapman v. State of California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)

Here, it is not reasonably probable the result would have been more favorable had defendant been present when the verdict was read. He would not have been allowed to do anything to change the result, and his counsel was present. Proceeding in his absence was harmless error.

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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