LOPEZ v. PEOPLE (1982)

In a consolidated appeal the Municipal Court of the County of Los Angeles (hereinafter “municipal court”) and the State of California (hereinafter “state”) challenge the judgment of the Appellate Department of the Superior Court granting a writ of mandate directing the municipal court to vacate its order requiring the defendant, Robert Lopez, to appear at trial.   The trial judge had ordered Lopez's appearance to insure that he “understands what is going on” and to “approve” his waiver of a personal appearance.

Lopez was charged with three misdemeanor crimes:  battery in violation of Penal Code section 242, disturbing the peace in violation of Penal Code section 415, and loitering in violation of Los Angeles Municipal Code section 42.11.1.¹  Lopez appeared for his arraignment on January 7, 1980.   His counsel appeared on a number of subsequent pre-trial motions without Lopez.

When this matter came to trial in municipal court, Lopez's attorney asserted that Lopez would not be present at his trial, because he had given the attorney a section 977, subdivision (a) ² , waiver of personal appearance.   Thereafter, the following exchange took place between the trial judge and Lopez's counsel:

“THE COURT:  I have never seen him here.   We went through this matter the last time.

“MR. ZELEN:  Yes.

“THE COURT:  If he comes to court and I see him, and he understands what is going on and he needs to be excused—as you know from having sat here, you should know he will be excused, but he is ordered to be present.   He is not going to waive his right to trial without my approval, and I have not given him such approval until I see him here the date of trial.   You have my orders.

“MR. ZELEN:  For the record, I will object to that.   I object to any questioning of my client as to my communicating with him.   It is an attorney-client privilege.

“THE COURT:  What communications?

“MR. ZELEN:  My communications concerning his waiver of personal appearance.

“THE COURT:  I am not going to allow someone to give up their right to a trial, their constitutional right to be present at their trial without examining him as to that waiver.   That is the date of trial.   I believe he is required to be present under my order.

“MR. ZELEN:  I understand that.” ³

Lopez sought the instant writ of mandate from the appellate department to vacate the trial court's order requiring his personal appearance and to require the trial court to accept his waiver of appearance.   The appellate department made a finding of fact that an executed waiver of personal appearance had been made by Lopez pursuant to section 977, subdivision (a).⁴  In its conclusions of law the court found that “[t]he right of a misdemeanor defendant to be present in court during his trial, while basic, does not have the stature of other procedural rights.   Accordingly no explicit waiver of this right is necessary, and counsel's representation that he has received authorization from his client to appear is sufficient to show the defendant's waiver of his right to appear at trial.”   The appellate department concluded that the “Respondent Court [municipal court] acted in excess of its jurisdiction when it ordered petitioner [Lopez] to be present in court for the purpose of examining him regarding his waiver of his right to be present during trial.”   A peremptory writ of mandate was issued vacating the trial court's order requiring Lopez to appear and directing the trial court to accept the appearance of Lopez's counsel on his behalf.   This appeal followed by the municipal court and the state.

As relevant to the issues on appeal, Lopez's arrest report discloses that he was asked to leave the Greyhound Bus depot on December 29, 1979, by one of its security agents after he was observed wandering about the depot and had indicated to the agent that he was not transacting any business at the depot.   Lopez left the depot, but returned and again was asked to leave, which he did.   Lopez was observed a third time in the depot and was ordered to leave.   A fight ensued between Lopez and the security agent and Lopez was arrested at the scene.

The municipal court and the state contend on appeal that the trial judge had the right to require a personal appearance by a misdemeanor defendant at trial to insure that a defendant has made a knowing and intelligent waiver of his right to personally appear.   We disagree and affirm the appellate department's judgment granting the writ of mandate.

The right to be present at a criminal trial is a right provided in article I, section 15, of the California Constitution.   Sections 997, subdivision (a) (arraignment), and 1043, subdivision (e) (trial) ⁵ , permit a defendant to knowingly and intelligently waive his right to be present at trial.  (People v. Shelby (1980) 108 Cal.App.3d Supp. 7, 11, 166 Cal.Rptr. 707;  People v. Kriss (1979) 96 Cal.App.3d 913, 916, 158 Cal.Rptr. 420;  People v. Semecal (1968) 264 Cal.App.2d Supp. 985, 990, 69 Cal.Rptr. 761.)

 Section 977, subdivision (a), together with section 1043, subdivision (e), require a trial judge to proceed with the trial of a misdemeanor defendant if a waiver of appearance pursuant to section 977, subdivision (a), has been made.   Such a waiver indicates a prima facie intelligent waiver of the right to appear.   The trial judge has no discretion in proceeding in a defendant's absence, as section 1043, subdivision (e), states that the “court shall proceed with trial” if a section 977, subdivision (a), waiver has been made.  (Ernst v. Municipal Court (1980), 104 Cal.App.3d 710, 719–720, 163 Cal.Rptr. 861.)

 These sections do not require that the waiver be in writing or that a defendant make an appearance to satisfy the trial judge that his waiver has been knowingly made;  the waiver is prima facie proof of its being a knowledgeable and intelligent one.   The waiver need not be explicit and counsel's representation that a waiver has been made satisfies the requirements of both sections.⁶  An anomalous situation would exist were we to hold otherwise, for ordering a defendant to appear would effectively abrogate the provisions of the waiver statute.   It should be noted that the trial court would be specifically required to make findings that a defendant's absence from trial was voluntary and that he knew of the trial where he has given no authorization pursuant to section 977, subdivision (a).  (§ 1043, subd. (e)(4).)   The voluntary absence under such circumstances is tantamount to giving an oral or written waiver.  (See People v. Connolly (1973) 36 Cal.App.3d 379, 111 Cal.Rptr. 409.)

Our holding in People v. Kriss, supra, 96 Cal.App.3d 913, 158 Cal.Rptr. 420 is in point.  Kriss holds that section 1043, subdivision (e), as it now reads, provides for a defendant's “voluntary absence from the proceedings with full knowledge that the trial is being held,” when he has given a section 977, subdivision (a), waiver.  (Id., at p. 918, 69 Cal.Rptr. 761.)   We also stated that “the defendant may be absent when the court adjudicates guilt and sentences in a misdemeanor or infraction proceeding if (1) he is represented by counsel, or (2) he knowingly and intelligently waives his right to be present.”  (People v. Kriss, supra, at p. 919, 158 Cal.Rptr. 420;  emphasis in the original.)

 The above analysis in no way conflicts with the trial court's power to order the personal appearance of a defendant so as to properly conduct a trial under section 1043, subdivision (e).  (Khoury v. Municipal Court (1980) 111 Cal.App.3d 284, 288, 169 Cal.Rptr. 1.)   Such an appearance could be required, for example, when there has been no waiver of appearance under section 977, subdivision (a), and the court concludes that a defendant has not knowingly waived his right to be present or when the defendant's identity is at issue in the case.

 In the case at bar, Lopez's counsel indicated to the trial court that he had a section 977, subdivision (a), waiver from Lopez.   The trial judge could thereafter question the attorney to satisfy himself that such a waiver had been made, inquiring, perhaps, if the waiver was oral or written ⁷ or induced by some improper pressure.  (See Olney v. Municipal Court, 133 Cal.App.3d 455, 184 Cal.Rptr. 78 (1982) with a modification filed July 27, 1982.)   The trial court here erred in requiring Lopez to appear to examine him for the purpose of determining whether his waiver had been knowingly made and in requiring court approval of the waiver.   As we have stated, section 1043, subdivision (e), does not require this judicial litmus test, and a section 977, subdivision (a), waiver assumes the waiver as knowingly and intelligently made.

People v. Khoury, supra, 111 Cal.App.3d 284, 169 Cal.Rptr. 1 does not suggest a contrary result to the instant case.  Khoury, a decision from the second division of this district, holds that section 1043, subdivision (e) “directs the trial court to proceed in the misdemeanor defendant's absence only when it finds that the defendant ‘voluntarily’ and knowingly relinquished his right to appear personally and authorized his attorney to proceed without him.”  (People v. Khoury, supra, 111 Cal.App.3d at p. 288, 169 Cal.Rptr. 1.)

Under the circumstances in Khoury, such a finding was required, because, unlike the instant case, the defendant there had executed a written promise to appear.   When the attorney asserted at trial that the defendant had made a section 977, subdivision (a), waiver, a conflict existed and the trial judge was called upon to determine if the waiver had been knowingly made, thus voiding the promise to appear.

Khoury 's facts clearly distinguish it from the case at bar.   In Khoury, there was a purported oral waiver which was urged as taking precedence over defendant's written promise to appear.  (111 Cal.App.3d at pp. 286–287, 169 Cal.Rptr. 1.)   Also, identity was a principal issue.   (Id., at p. 288, 169 Cal.Rptr. 1.)   Here, the trial judge did not inquire into the nature of the waiver (oral or written) and may well have assumed that there was a written waiver, which there in fact was, and no issue of identity existed.

It is manifest that the trial judge in Khoury could seek to determine whether the defendant voluntarily absented himself with knowledge that the trial was to be held due to the conflict created by the written promise to appear and the purported waiver.   Further, under section 1043, subdivision (e), Khoury was properly required to appear, because identity was in issue and there was no complete and unconditional stipulation offered as to it.

 We have stated that in the instant case there is no identity issue despite the state's contention to the contrary.   The prosecution would not stipulate to defendant being the person involved here (not as in Khoury where the defense was offering only to stipulate that Khoury was the one arrested), despite the defendant's willingness to do so.   Where defendant unequivocally removes the issue by admission, section 1043, subdivision (e), does not require the prosecution's joinder in the stipulation.⁸  We add as an aside that this identity question was not raised below and was not the basis for the trial judge's order for Lopez to appear, though we do not rely upon that fact for our result.

We hold here that the trial court may not require a misdemeanor defendant to appear in order to permit the court to examine him as to whether he knowingly waives his right to be present and then to approve his waiver, when his counsel states that the defendant has given a section 977, subdivision (a), waiver.

Judgment granting the writ of mandate is affirmed.

FOOTNOTES

1.   Hereafter, all code section references are to the Penal Code.

2.   Penal Code section 977, subdivision (a), states:  “In all cases in which the accused is charged with a misdemeanor only, he may appear by counsel only.”

3.   Appellants correctly assert that the attorney-client privilege is not involved here and would not prevent questioning of Lopez concerning his waiver.   Lopez concedes this.In addition, we note that the trial court spoke of a waiver of trial.   There was no such waiver and the court erred in so construing the “waiver.”   We treat the issue before us solely as a section 977, subdivision (a), waiver, as did the appellate department.

4.   Counsel for Lopez indicated in his points and authorities attached and filed with the petition for writ of mandate that Lopez had executed a written waiver of appearance pursuant to section 977, subdivision (a), though none was lodged with the trial court and counsel did not present it to the trial court.The appellate department made a finding of fact that such a waiver had been executed.   Under the circumstances here, it does not matter whether the waiver was oral or written for the court did not make this inquiry of counsel.

5.   Section 1043, subdivision (e), provides as follows:“(e) If the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of Section 977.“If there is no authorization pursuant to subdivision (a) of Section 977 and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may do one or more of the following, as it deems appropriate:“(1) Continue the matter.“(2) Order bail forfeited or revoke release on the defendant's own recognizance.“(3) Issue a bench warrant.“(4) Proceed with the trial * * * if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held.“Nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.”

6.   We also note, that the municipal court's contentions that the waiver of a misdemeanor defendant's appearance is analogous to the plea of guilty and that the form of waiver in a felony should be similar to that in a misdemeanor, finds no support in the legislation controlling waiver of a misdemeanant's appearance.   A clear distinction has been drawn between a felony and a misdemeanor in the two sections.  (People v. Semecal, supra, 264 Cal.App.2d Supp. at p. 990, 69 Cal.Rptr. 761.)   Less formality is required to waive a misdemeanor defendant's appearance and we see no reason to question the Legislature's clear purpose to distinguish the waiver in a misdemeanor from that in a felony.

7.   We reiterate what we said in People v. Kriss, supra, 96 Cal.App.3d at page 917, 158 Cal.Rptr. 420:  “In misdemeanor and, hence, infraction proceedings defendants, if they so desire, may appear solely by counsel pursuant to Penal Code section 977, subdivision (a).   However, the court must be certain that the acts of counsel are authorized by the defendant.  (Mills v. Municipal Court (1973) 10 Cal.3d 288 [110 Cal.Rptr. 329, 515 P.2d 273].”  (Fn. omitted.)The attorney for a defendant who has waived his appearance pursuant to section 977, subdivision (a), must afford the trial court the opportunity to review the waiver and to satisfy itself that a waiver has been voluntarily made.  (Khoury v. Municipal Court, supra, 111 Cal.App.3d at p. 288, 169 Cal.Rptr. 1.)   At bench, the trial judge precluded such a determination by insisting on Lopez's appearance contrary to section 1043, subdivision (e).

8.   People v. Hall, (1980) 28 Cal.3d 143, 167 Cal.Rptr. 595, 615 P.2d 1383, precludes introduction of evidence of Lopez's identity if Lopez stipulates to it.   Such evidence would be irrelevant.  (Id., at p. 152, 167 Cal.Rptr. 595, 615 P.2d 1383.)

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur. Hearing denied;  MOSK and REYNOSO, JJ., dissenting.