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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas L. PRATER, Defendant and Appellant.

Cr. 19686, Cr. 20261.

Decided: July 27, 1981

Quin Denvir, State Public Defender, Mark Fogelman, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Charles M. Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

These appeals are consolidated.1  In No. 19686, defendant appeals from a judgment revoking probation previously granted for one count of possession of heroin (Health & Saf.Code, § 11350) and one count of auto theft (Veh.Code, § 10851);  in No. 20261, defendant appeals from a judgment entered on a jury verdict finding him guilty of four counts of second degree burglary (Pen.Code, § 459) and one count of first degree burglary (Pen.Code, § 459).   He contends that:  1) in No. 19686, he was deprived of a speedy trial, as the revocation of his probation did not constitute good cause for the delay;  2) he was deprived of federal and state due process, as he was tried in absentia;  3) the court erred to his prejudice by failing to carefully inquire about his express dissatisfaction with his counsel, in violation of People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44;  and 4) the court erred by giving a reasonable doubt instructions based on CALJIC 2.90, subsequently disapproved by People v. Brigham, 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 92.   For the reasons set forth below, we have concluded that there is no merit to any of the above contentions;  therefore, both judgments must be affirmed.

As there are no contentions concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice.

About 9:30 p. m. on November 18, 1978, 82–year–old Mrs. Marbardi returned to her home at 1630–36th Avenue in San Francisco;  she was accompanied by her daughter, Ms. Burgess.   The house was in total disarray with every closet and drawer opened and a silver set and coins missing.   The front door had been pried open, its frame damaged and the lock broken.   Defendant's fingerprints were found on the door frame, a cookie can and a kitchen drawer.

On December 4, 1978, the home of the Gounarides at 1342–36th Avenue was entered during the day.   The front door had been opened, its frame damaged and the lock broken.   The house was in disarray;  jewelry, silverware and a handgun in a holster were missing.   Defendant's left palmprint was on the inside of the front door.

About 3 p. m. on December 4, 1978, the Weinsteins returned to their home at 2817 Lincoln Way, San Francisco, and met defendant and another man coming down the stairs.   Defendant was carrying a bag.   Weinstein chased them, and defendant dropped the bag that contained some jewelry belonging to the Weinsteins and a handgun in a holster.   In the bedroom, Mr. Weinstein found silverware of the type owned by Mrs. Marbardi.

Around midnight of December 9, 1978, Max Wolf returned to his home at 135 Idora in San Francisco and found everything upside down.   Two watches, a camera, several rings and a navy pilot's jacket were missing.   The front door had been opened with a chisel.   A 9 inch screwdriver was in the bedroom.   Defendant's fingerprints were found at the point of entry.

On January 6, 1979, San Francisco Police Officer Donald Brewer responded to a call about a burglary in progress at 30 Broadmoor Street in San Francisco.   The front door had been pried open;  a plastic bag in the kitchen contained a jar of pennies and other items.   Defendant was found hiding in a closet.   Defendant was wearing a watch on each wrist.   He told Officer Brookbush that the watch on his right wrist belonged to him but admitted that the one on his left wrist had been stolen.

Defendant did not take the stand.   His witness, Ms. Trotter, testified that defendant had been employed at her restaurant at 208 Eddy Street from November 17, 1978, until January 3, 1979.   Although defendant's work did not begin until about 9 p. m., he always arrived at the restaurant by 7 p. m.   He was usually through working by 10:30 or 11 p. m. and left before she did.

We turn first to defendant's contention in No. 19686 that he was deprived of his federal and state constitutional right to a speedy trial as admittedly he was not tried within the 60-day time limit of Penal Code section 1382.   The record indicates that the information charging defendant with the instant offenses was filed on February 14, 1979.   On March 1, 1979, defendant was served with a copy of the petitions to revoke probation in two other cases.   After the hearing on these petitions on April 2, 1979, probation was revoked and defendant sentenced to state prison.   Defendant was transferred to prison on April 5, 1979.   On June 18, his motion to dismiss the instant charges for lack of a speedy trial was denied.   The jury trial commenced on August 13, 1979, within 90 days of defendant's demand on June 18, 1979.

 So far as pertinent, Penal Code section 1381 provides for trial of a state prisoner within 90 days of a demand to be tried on pending charges.   Defendant erroneously relies on Penal Code section 1382, which generally provides for trial on felony charges within 60 days of the filing of the indictment or information.   Defendant's contention overlooks the fact that he was a state prisoner and, therefore, subject to the 90-day provision of Penal Code section 1381 rather than the general provision of Penal Code section 1382 (People v. Manina, 45 Cal.App.3d 896, 899, 120 Cal.Rptr. 51).  Defendant's reliance on Owens v. Superior Court, 28 Cal.3d 238, 168 Cal.Rptr. 466, 617 P.2d 1098;  People v. Coleman, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, and Ayers v. Superior Court, 86 Cal.App.3d 945, 150 Cal.Rptr. 485 is inapposite.

As this court (Div. One) explained in People v. Jacobs, 27 Cal.App.3d 246, at page 259, 103 Cal.Rptr. 536:  “We apprehend that while both sections 1381 and 1382 have the objective of protecting the accused from having charges pending against him for an undue length of time (see People v. Godlewski, supra, 22 Cal.2d 677, 682 [140 P.2d 381];  In re Mugica, supra, 69 Cal.2d 516, 522 [72 Cal.Rptr. 645, 446 P.2d 525]), there is an important rational distinction between the defendant described in section 1381 and the defendant entitled to invoke section 1382.   Under section 1381 the defendant is incarcerated because he has been convicted of a felony;  under section 1382 a defendant whose guilt or non-guilt remains undetermined may be suffering incarceration merely because he has not been able to make bail.   The objective of section 1382 is to insure that the defendant in the latter circumstances will be given an early trial.”

 Even assuming that defendant's speedy trial contention has merit, since he waited to raise the issue until this appeal rather than seeking a writ, he must show prejudice from the delay (Barker v. Wingo, 407 U.S. 514, 534, 92 S.Ct. 2182, 2194, 33 L.Ed.2d 101;  People v. Johnson, 26 Cal.3d 557, 574–575, 162 Cal.Rptr. 431, 606 P.2d 738).   The elements of prejudice include:  1) impairment of a defense;  2) stress from the delay of the trial;  and 3) the possible denial of concurrent sentences (Barker v. Wingo, supra, 407 U.S., p. 532, 92 S.Ct., p. 2192;  People v. Hughes, 38 Cal.App.3d 670, 677, 113 Cal.Rptr. 508).

 Defendant lost no defense since his only witness, Ms. Trotter, testified and suffered no loss of memory.   Defendant also asserts that an unidentified alibi witness moved to Canada and had no known address.   The record also indicates that the court had ruled that defendant could testify about this alleged alibi without subjecting himself to impeachment by his prior felonies.   As indicated above, the evidence was overwhelming:  defendant was caught during the Broadmoor burglary and identified by the Weinsteins who saw him coming down the stairs with the loot.   In addition, his prints were found at the scene of several of the burglaries, and some of the items taken from the Marbardi home were found at the Weinstein's.

Defendant's contention that the “emotional stress” of the delay caused him to absent himself from the proceedings flies in the face of the record.   Defendant became obstreperous when the court denied his second motion to dismiss for want of a speedy trial.   In addition, defendant was not deprived of any possible concurrent sentences.   The record indicates that the court, pursuant to California Rules of Court, Rule 423, imposed consecutive sentences for the instant offenses because of defendant's sophistication, the many victims and defendant's priors.

Defendant next contends that the trial court proceeded to try him in absentia in violation of Penal Code section 1043, set forth, so far as pertinent, below.2  The record here indicates that defendant was present with his counsel in the morning when his motions were determined and 11 prospective jurors selected.   After the lunch recess, defendant asked his counsel to inform the court that he would not be present.

When the court ordered defendant returned for a hearing, defendant indicated he was willing to be found in contempt.   The court then explained defendant's rights.   Defendant stated that he would not waive his rights, would not be present and that the court would have to force his attendance.   The court replied that it would not order defendant to be brought into the courtroom in shackles or “make a wrestling match of the whole thing.”   After defendant repeated that he would be present only if forced to do so, the court ruled that defendant had made a knowing and intelligent waiver of his rights to be present and to confront his accusers.   The court also ruled that:  1) the jury would not be informed of the reason for his absence;  and 2) defendant would be asked before every court session whether he wished to attend.

Thereafter, the voir dire of the jurors continued.   The 12th juror and two alternates were selected and sworn.   The trial proceeded with defendant's counsel representing him.   The next day, defendant again refused to attend but informed the bailiffs that his appointed counsel, Mr. McCready, was no longer authorized to represent him, and that defendant did not wish to speak to McCready.

Defendant relies on People v. Molina, 55 Cal.App.3d 173, 127 Cal.Rptr. 434.   In Molina, the defendant, who was present when 11 jurors were selected, did not appear the following day.   The court held that since his absence occurred before the jury was impaneled and sworn to try the cause, the exception of section 1043, subdivision (b), did not apply, as a trial does not commence until the jury is impaneled or the first witness sworn.   The Molina court relied on the following portion of Evidence Code section 12:  “A trial is commenced when the first witness is sworn or the first exhibit is admitted․”.

 Defendant maintains that Molina controls here;  the People, that since Molina has never been cited, its restrictive definition of “trial” predicated on Evidence Code section 12 should be disregarded.   The People urge that for purposes of Penal Code section 1043, the word “trial” should be defined in a manner broad enough to include the voir dire of the jury.   We agree.   We note that a defendant is in legal jeopardy for an offense when placed on trial on a valid accusatory pleading before a competent court with a jury duly impaneled and sworn;  or if a trial by the court, when the first witness is sworn (People v. Upshaw, 13 Cal.3d 29, 32–33, 117 Cal.Rptr. 668, 528 P.2d 756).

As held in People v. Snyder, 56 Cal.App.3d 195, 199–200, 128 Cal.Rptr. 297, the propriety of the trial court's decision to proceed rests on criteria set forth in People v. Connolly, 36 Cal.App.3d 379, at pages 384–385, 111 Cal.Rptr. 409:  “[S]ection 1043, subdivision (b)(2), was an adoption of the majority rule in the United States.  [Citations.]   Strikingly similar to section 1043, subdivision (b)(2), is rule 43, Federal Rules of Criminal Procedure, which provides, in pertinent part:  ‘In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.’   The essential elements of section 1043, subdivision (b)(2), and rule 43 are the same.   We, therefore, look to several federal cases for guidance.


“In the first Cureton case (Cureton v. United States (D.C.Cir.1968) 396 F.2d 671․), the court concluded ‘that if a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary.   He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.’  (396 F.2d at p. 676.)

“In the second Cureton case (United States v. Cureton (D.D.C.1968) 302 F.Supp. 1065), upon remand, the trial judge concluded ‘that the defendant knowingly and voluntarily absented himself․’  (302 F.Supp. at p. 1069.)   In the third Cureton case (Cureton v. United States (D.C.Cir.1969) 413 F.2d 418․), the determination of the trial court was upheld.

“Defendant's constitutional right to be present at trial is involved and consequently, the rule formulated in the Cureton cases should be the appropriate test—i. e., that defendant's absence was knowing and voluntary․

“Unquestionably section 1043, subdivision (b)(2), was designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself.   A crucial question must always be, ‘Why is the defendant absent?’   This question can rarely be answered at the time the court must determine whether the trial should proceed.   Consequently, in reviewing a challenge to the continuation of a trial pursuant to Penal Code section 1043, subdivision (b)(2), it must be recognized that the court's initial determination is not conclusive in that, upon the subsequent appearance of the defendant, additional information may be presented which either affirms the initial decision of the court or demands that defendant be given a new trial.   It is the totality of the record that must be reviewed in determining whether the absence was voluntary.”  (Emphasis added.)

Here, unlike Snyder, Molina and Connolly, all supra, the defendant was in custody and the court knew why he was absent.   The court had an opportunity to question him and to conclude that he was determined to intentionally frustrate the orderly process of his trial.   The court properly refused to permit him to do so and then concluded that defendant voluntarily waived his right to be present and that defendant's counsel was authorized to continue to represent him.3

 The determination of whether a defendant's absence amounts to a waiver of his constitutional rights is in the discretion of the trial court.   We find no abuse of discretion here (cf. United States v. Kizer (9th Cir. 1978) 569 F.2d 504, 507).   Defendant's absence was voluntary and self-induced (cf. People v. Rogers, 150 Cal.App.2d 403, 411, 309 P.2d 949, defendant in self-induced insulin shock).   We recently affirmed a denial of a defendant's mistrial motion where the court declared that it was not its policy to bring any defendant into the courtroom in shackles (People v. Childs, 112 Cal.App.3d 374, 386, 169 Cal.Rptr. 183).   We hold that there was no violation of defendant's constitutional or statutory rights here (People v. Snyder, supra, 56 Cal.App.3d 195, 202, 128 Cal.Rptr. 297).

We turn next to defendant's contention concerning the court's failure to inquire into its reasons for wanting to dismiss his counsel.   Defendant asserts that People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, and its progeny, warrant a reversal.   We do not agree.

The record indicates that McCready was defendant's fifth counsel in these proceedings.   Here, defendant's request was made at the beginning of the second day of trial and repeated that afternoon and the following day.   No specification of reasons was offered.   Defendant merely reiterated his objection to the continuance of the trial.   Defendant's reliance on People v. Lewis, 20 Cal.3d 496, 499, 143 Cal.Rptr. 138, 573 P.2d 40, is inapposite, as there the court held that Marsden requires only that a court not only listen to but also inquire into the reasons volunteered by a defendant.   Defendant's general statement did not fall within the ambit of Marsden.   Defendant merely indicated that McCready no longer represented him and that he did not wish to speak to McCready.

As Justice Kaus noted in People v. Weston, 9 Cal.App.3d 330, at pages 334–335, 87 Cal.Rptr. 922:  “The game of ‘waive the lawyer’ is one in which the accused has little to lose and the People nothing to gain.   Among sophisticated defendants, an attempt to waive the right to counsel at some stage of the proceeding has become a routine ploy.   Trial judges complain with some justification that the decisions by which their rulings on such applications are judged have put them into the metaphorical opposite of a strait jacket which is a garment designed to make it impossible for the wearer to do anything wrong.   If we held that, on pain of reversal, the court must stop a trial dead in its tracks when a defendant wants ‘to go pro per,’ although he gives no adequate reason for such a demand, we would do nothing but add a joker to a hand that already contains four aces.

“We are aware of the fact that it has repeatedly been said that ‘[i]t is well settled law that if a defendant, during the course of the trial, becomes dissatisfied with the manner in which his counsel has handled his case and wishes to discharge counsel for that reason he has a constitutional right so to do [citation], subject to the supervisory powers of the trial court to see that such discharge does not result in an uninformed and unintelligent waiver of the right to counsel.’  (People v. Johnson, supra, 241 Cal.App.2d [423] at p. 437 [50 Cal.Rptr. 598], see also People v. Monk, 56 Cal.2d 288, 299 [14 Cal.Rptr. 633, 363 P.2d 865];  People v. Foust, 267 Cal.App.2d 222, 227–228 [, 72 Cal.Rptr. 675];  People v. Bourland, 247 Cal.App.2d 76, 84 [, 55 Cal.Rptr. 357].)  In none of these cases, however, was it actually held to have been error to refuse to conduct a hearing on the defendant's competency on a bare claim of inadequate representation.”

 The identical reasoning applies here.   Defendant's general statement did not offer any substantial grounds that called for further inquiry by the court (People v. Culton, 92 Cal.App.3d 113, 116, 154 Cal.Rptr. 672), or for the special remand procedure suggested by this court (Div. Four) in People v. Minor, 104 Cal.App.3d 194, 199, 163 Cal.Rptr. 501.

Further, defendant also failed to make a timely and unequivocal assertion of his right to represent himself (cf. People v. Salazar, 74 Cal.App.3d 875, 889, 141 Cal.Rptr. 753).   We hold that there was no Marsden error.

 Defendant's contention, premised on the erroneous reasonable doubt instruction (People v. Brigham, supra, 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 92) is equally without merit.   In Brigham, our Supreme Court disapproved former CALJIC 22 and made its holding retroactive and indicated at page 292, 157 Cal.Rptr. 905, 599 P.2d 92 that the Watson rule was to be applied.   The error here was harmless.   First, the correctness of an instruction is determined by its relation to other instructions and in the light of the instructions as a whole (People v. Wingo, 34 Cal.App.3d 974, 979, 110 Cal.Rptr. 448).   More importantly, the evidence here leaves no doubt that defendant was guilty of the offenses of which he was convicted.   As indicated above, defendant was caught in the act with the loot as to two of the burglaries and had in his possession some of the items taken from another.   In addition, his finger or palm prints were found at the site of several burglaries.   It is not reasonably probable that a verdict more favorable to defendant would have been reached in the absence of the Brigham error (People v. Johnson, 104 Cal.App.3d 598, 612–613, 164 Cal.Rptr. 69;  People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243).

 Nor do we see any prejudice to defendant from the amendment of Count Four (the Wolf burglary) during the trial, over objection, to include a night-time allegation.   The original information contained a night-time allegation as to Count One (the Marbardi burglary).   Defendant was sentenced for first degree burglary on Count Four, and for second degree on the remaining counts.  (Pen.Code, § 460, subds. 1–2.)   The degree only affects enhancement and not guilt.

The judgments are affirmed.   In No. 20261, the purported appeal from the sentence is dismissed.


1.   Order dated May 9, 1980.   Defendant's notice of appeal in No. 20261 erroneously indicates that he also appeals from the sentence.   As the sentence is merged into the judgment, the purported appeal must be dismissed.

2.   “(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally at the trial.“(b) 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:  ․“(2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.”  (Emphasis added.)

3.   The record indicates that defendant's counsel did so and raised the instant issue on the motion for a new trial.

TAYLOR, Presiding Justice.

MILLER and SMITH, JJ., concur.