Can a defendant waive his right to be personally present at trial if he is not personally present?

California, United States of America


The following excerpt is from People v. Blas, F077225 (Cal. App. 2020):

Section 1043 further provides in relevant part that the defendant in a felony case "shall be personally present at the trial." (Id., subd. (a).) However, the defendant's absence "after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in ... [] ... [] [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent." ( 1043, subd. (b)(2).) "'"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." [Citation.]' [Citation.] It provides the trial court with clear guidance and direct authority to ensure the orderly process of trial when a defendant is absent voluntarily." (People v. Concepcion (2008) 45 Cal.4th 77, 83.) A defendant can implicitly waive the right to be present where the record shows she is "'"aware of the processes taking place,"' she knows '"h[er] right and of h[er] obligation to be present,"' and she has '"no sound reason for remaining away."'" (People v. Espinoza, supra, 1 Cal.5th at p. 74.)

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