Can a defendant surrender his right to be present at trial?

The defendant's constitutional right to be present at his trial can be surrendered, however, if it is abused for the purpose of frustrating the trial. (Illinois v. Allen (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.) The right to be present can be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. (Id. at 343, 90 S.Ct. at 1060.)

Consistent with Illinois v. Allen is California Penal Code section 1043 which requires that a defendant in a felony trial be personally present at trial. However, if the defendant insists on conducting himself in a "disorderly, disruptive and disrespectful" manner, so that the trial cannot be carried on with him in the courtroom, the defendant may be removed from the courtroom after proper warning by the judge. (Pen.Code, 1043, subd. (b)(1).)

More importantly for purposes of this case, the court is entitled to try a defendant for an offense which is not punishable by death without the defendant's presence in the courtroom if the defendant voluntarily absents himself. ⁷ This provision was designed to prevent a defendant from intentionally frustrating the orderly process of his trial by voluntarily absenting himself from the courtroom. (People v. Connolly (1973) 36 Cal.App.3d 379, 384, 111 Cal.Rptr. 409.)

The criteria for determining "voluntariness" in the context of Penal Code section 1043, subdivision (b)(2) are set forth in People v. Connolly, supra, 36 Cal.App.3d at 384-85, 111 Cal.Rptr. 409, where the court reviewed the relevant law as follows: