Filed 5/18/18 P. v. Zimmerman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
STEPHEN PAUL ZIMMERMAN,
Defendant and Appellant.

A152492

(Sonoma County
Super. Ct. No. SCR-703631)


Defendant Stephen Paul Zimmerman appeals a judgment convicting him of felony indecent exposure and sentencing him to three years in state prison. After being admonished for disruptive behavior, defendant chose to remain in his jail cell throughout most of the trial court proceedings, except when he was testifying. On appeal, he contends the trial court violated his constitutional and statutory rights in granting his request to be excused from the courtroom without first obtaining an “adequate waiver.” We find no error and shall affirm the judgment.
Factual and Procedural Background
Defendant was charged with a single count of felony indecent exposure with a prior conviction for that offense. (Pen. Code, § 314, subd. (1).) At trial, a witness testified that defendant exposed his penis to her in a parking lot. Defendant testified that he exposed his penis to the witness because he believed she was “interested in watching me do that.” The jury found defendant guilty and the court sentenced him to the upper term of three years in state prison. Defendant timely filed a notice of appeal.
Discussion
“A criminal defendant’s right to be present at trial is protected under both the federal and state Constitutions. [Citations.] ‘The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation],’ . . . Our state Constitution guarantees that ‘[t]he defendant in a criminal cause has the right . . . to be personally present with counsel, and to be confronted with the witnesses against the defendant.’ ” (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez).) Sections 977 and 1043 also provide a statutory right to be present during criminal proceedings.
“A defendant’s right to presence, however, is not absolute. . . . [A] defendant's ‘privilege may be lost by consent or at times even by misconduct.’ ” (Gutierrez, supra, 29 Cal.4th at p. 1202.) Under section 1043, subdivision (b)(2), “The 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 any of the following cases: [¶] . . . Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.”
We apply “ ‘the independent or de novo standard of review to a trial court’s exclusion of a criminal defendant from trial, . . . insofar as the trial court’s decision entails a measurement of the facts against the law.’ ” (Gutierrez, supra, 29 Cal.4th at p. 1202.)
A. Background
On June 29, 2017, defendant disrupted the proceedings at his preliminary hearing, and was ordered removed from the courtroom. On July 28, following a hearing at which defendant repeatedly accused the court of violating the Constitution, the court denied his motion to represent himself.
On August 11, at a pretrial hearing, defendant asked, “Do I need to be here for this? I’d rather go to my cell.” After being informed that his presence was required, defendant again became disruptive, accused the court of being “a vicious, wicked man,” was cited for contempt and removed from the courtroom.
On August 14, at the start of jury selection, defendant continued to disrupt the proceedings, accusing the court of violating the constitution and being “unjust, wicked,” and a “coward.” The court warned, “[I]f you’re not going to let your counsel do the talking . . . , the court will find that you are voluntarily absenting yourself from this trial and your trial will go forward without you being present.” The court informed defendant that he had a right to be present and asked, “[A]re you saying that you are now voluntarily absenting yourself from these proceedings, you don’t want to participate?” Defendant replied, “That’s correct” and asked for “permission to leave.” The court informed defendant that he would be “absented during the course of jury selection and the trial,” that he would be notified when it was time for the defense case and given an opportunity to testify if he so chose and that if at some point he decided “to do something differently” he should let the court know.
On August 16, before the presentation of evidence, defendant was brought to the court room and given a final opportunity to be present at trial. Defendant’s counsel remarked that she had discussed the matter with defendant and that “[h]is request at this point is that he not be present during the trial . . . except to testify.” The court, “with that understanding,” allowed defendant to leave the courtroom and return to jail until it was time for him to testify.
Defendant was absent from the courtroom during the testimony of the several witnesses but returned to testify. After testifying he requested to again leave. The court informed defendant that he had “an absolute right to be [present] during closing instructions and argument” and confirmed that defendant was leaving voluntarily. The court also confirmed with defendant that he did not want to be present for the reading of the verdict.
On September 8, defendant was brought to court for sentencing but again began disrupting the hearing. When asked whether the wanted to stay to hear his sentence, defendant replied, “I’d like to go back to my cell.” The court allowed him to do so.
B. The court did not violate defendant’s right to be present at trial.
Defendant contends the court violated his right to be present at trial by failing to obtain an adequate waiver before excusing him from the courtroom. He argues that he “did not make a knowing and intelligent waiver of his constitutional right to be present at trial” because the court “did not explain the right of confrontation and cross- examination or the importance of his presence to defend against the charges.” He also argues that the court violated section 977, subdivision (b), by excusing him from the courtroom without requiring execution of a written waiver.
Initially, we reject defendant’s claim that a written waiver was required in this instance. It is undisputed that a written waiver was not required to waive defendant’s constitutional rights, only the statutory right to be present under section 977, subdivision (b). (People v. Wall (2017) 3 Cal.5th 1048, 1060; People v. Howze (2001) 85 Cal.App.4th 1380, 1395-1396.) In Gutierrez, the court explained, however, that section 977, subdivision (b) does not govern when a defendant voluntarily absents himself from the proceedings after his initial appearance. Rather, “when a trial has commenced in a defendant’s presence, section 1043 applies.” (Gutierrez, supra, 29 Cal.4th at p. 1203.) 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.” (Id. at p. 1206.)
Defendant was present when his trial commenced. “[U]nder section 1043 a defendant is present when a trial ‘commences’ if ‘the defendant is physically present in the courtroom where the trial is to be held, understands that the proceedings against him are underway, confronts the judge and voluntarily says he does not desire to participate any further in those proceedings.’ ” (People v. Ruiz (2001) 92 Cal.App.4th 162, 167; see also People v. Molina (1976) 55 Cal.App.3d 173, 177 [Trial “commences” for purposes of section 1043 when either (1) the jury is impaneled and sworn or (2) the first witness is sworn or the first exhibit is admitted into evidence.].) Even if his trial had not commenced when he first asked to leave the courtroom during jury selection, it certainly had commenced after the jury was sworn but before any evidence was presented, when the court brought defendant back to the courtroom to confirm his voluntary absence.
The record also establishes that defendant’s decision not to be present was knowing and voluntary. “In determining whether a defendant is absent voluntarily, a court must look at the ‘totality of the facts.’ ” (Gutierrez, supra, 29 Cal.4th at p. 1205 [noting that “a defendant’s express waiver in front of the judge might be the surest way of ascertaining the defendant’s choice”].) Given the record in this case, there is no doubt that defendant “by words and conduct . . . waived his right to be present voluntarily and with full knowledge that the trial was continuing without his presence.” (People v. Lewis (1983) 144 Cal.App.3d 267, 279; see also People v. Wall (2017) 3 Cal.5th 1048, 1059-1060 [Defendant’s waiver of his constitutional right to be present at trial was knowing and intelligent where defendant was advised of his right to be present at trial, counsel discussed the waiver with defendant, and defendant personally and expressly waived his right to be present before the court.].)
Because the trial court did not err in concluding defendant was “voluntarily absent” (§ 1043, subd. (b)(2)), and properly continued with trial in his absence, we do not reach the question whether defendant’s absence was prejudicial. (Gutierrez, supra, 29 Cal.4th at p. 1209.)
Disposition
The judgment is affirmed.






_________________________
Pollak, J.


We concur:


_________________________
McGuiness, Acting P.J.*


_________________________
Jenkins, J.