People v. Cox (1978)

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Appellate Department, Superior Court, Los Angeles.

[Crim. A. No. 16020. Apr. 27, 1978.]

THE PEOPLE, Plaintiff and Appellant, v. RUDY COX, Defendant and Respondent.

(Opinion by Ibanez, J., with Cole, P. J., and Bigelow, J., concurring.) [81 Cal. App. 3d Supp. 2]


Burt Pines, City Attorney Ward G. McConnell, Assistant City Attorney, and Maureen R. Siegel, Deputy City Attorney, for Plaintiff and Appellant.

Michael R. Lyons for Defendant and Respondent.


Ibanez, J.

This is an appeal by the People from an order granting a new trial (Pen. Code, § 1181, subd. 1) after a judgment of conviction on a jury trial. The defendant was charged, and found guilty by a jury of violation of Penal Code section 647, subdivision (b) (prostitution). The jury trial began September 14, 1977. The jury was selected, the arresting officer testified and his cross-examination began when the trial recessed at the end of the first day. The defendant was ordered by the court to return the next day at 9:15 a.m. The next day the defendant failed to appear at the trial. After waiting until 10:05 a.m. the court ordered the trial to proceed in the defendant's absence(Pen. Code, § 1043, subd. (e)) on the [81 Cal. App. 3d Supp. 3] grounds that the defendant had knowledge of the proceedings, that his presence was required and he failed to offer an excuse for his absence.

The next day, and in the absence of the defendant, the testimony was completed and both sides rested, argument was heard, the jury instructed and a verdict of guilty was returned.

On September 19, 1977, the defendant moved for a new trial based on the fact that he was absent from court as a result of being admitted into University of Southern California General Hospital.

On September 29, 1977, the defendant testified that the reason he was absent from court on September 15, 1977, was because on the evening of September 14, 1977, he had been socializing with some friends and had ingested LSD. Because the LSD left him feeling down, he took Elavil, a prescription drug. After ingesting the Elavil, the defendant's heart began beating faster and he felt dizzy so he went to the hospital. fn. 1 (He apparently was admitted on the morning of September 15.)

Subsequent to the above testimony, the court, despite the presence of defense counsel, exercised defendant's Fifth Amendment rights on behalf of the defendant, putting an end to further testimony. The court also precluded the People from conducting any cross-examination.

On September 30, 1977, the court granted the motion for new trial. [81 Cal. App. 3d Supp. 4]

At the hearing on defendant's motion for a new trial the only issue presented and considered by the court was the trial "lawfully proceeded in defendant's absence." (Pen. Code, § 1181, subd. 1.) In granting the motion the court concluded that the defendant (sometimes referred to as "she" and as "Miss" Cox) had the intention of being present at her trial, that she was present while her case was trailing, that "she" did not ingest narcotics maliciously in an attempt to avoid the trial and that her actions were attributable to "irresponsibility and unbelievable stupidity." fn. 2


[1] The question to be resolved is whether the trial court abused its discretion in granting defendant's motion for a new trial. We are mindful of the wide discretion granted the trial court and the duty of an appellate court to resolve doubts based on presumptions in favor of the trial court's order granting a motion for a new trial. (People v. Brown (1947) 79 Cal. App. 2d 383 [179 P.2d 652]; People v. Perkin (1948) 87 Cal. App. 2d 365 [197 P.2d 39].)

Does the record support the court's conclusion that the defendant did not absent himself "voluntarily with full knowledge that the trial [was] to be held or [was] being held?" (Pen. Code, § 1043, subd. (e)(4).)

Where disabilities resulting in either physical or mental absence during the course of trial have been self-induced, the courts have characterized the resulting absences as voluntary and have been uniformly unsympathetic to defendant's due process claims. (People v. Rogers (1957) 150 [81 Cal. App. 3d Supp. 5] Cal.App.2d 403 [309 P.2d 949]; People v. Guillory (1960) 178 Cal. App. 2d 854 [3 Cal. Rptr. 415, 80 A.L.R.2d 1077].) fn. 3

In People v. Rogers, supra, involving a felony prosecution, the defendant became mentally disabled by reason of a self-administered over-injection of insulin during the course of trial. The situation could have been remedied if the defendant had eaten lunch, which he refused to do. The court held that the defendant by his own actions had induced a condition whereby he became mentally absent from trial. The court viewed those actions as a waiver of his right to be present during the course of trial under Penal Code section 1043. The judgment of conviction was affirmed.

In People v. Guillory, supra, the defendant who was hard of hearing, appeared in court for his felony trial without batteries for his hearing aid. The court followed the direction of Rogers, noting that any difficulty the defendant had was self-induced and offered "no ground for complaint."

It should be noted that the foregoing cases dealt with the appropriateness of proceeding with a felony trial in the defendant's absence. In this case, the defendant was charged with the commission of a misdemeanor. It is well established that misdemeanor prosecutions do not require a defendant's presence at trial. (People v. Semecal (1968) 264 Cal. App. 2d Supp. 985 [69 Cal. Rptr. 761].)

We conclude that the only reasonable inference which can be made from the record before us is that the absence of the defendant from the trial was due to a disability which he himself induced, i.e., the ingestion of illegal hallucinogenic drugs ... In the face of the authorities we conclude that the trial court abused its discretion in granting the motion for a new trial.

The order granting the new trial is reversed.

Cole, P. J., and Bigelow, J., concurred.

FN 1. "The Court: Why weren't you here?

"The Witness: [defendant] That evening I had been socializing that evening with some friends, and we did take some LSD. I was feeling okay until later. Then I took some Elavil because I was feeling down from the LSD. I thought the Elavil would give me an up-lift. After I took the Elavil, my heart started to beat faster. I felt dizzy, and a friend suggested that I go to the hospital. And that's exactly what I did. So--

"The Court: It didn't occur to you that--

"The Witness:--called the court. I called the public defender, and he said I could appear no later than Monday.

"The Court: That is right. I held the bench warrant. It didn't occur to you that evening when you took these drugs that you might be in a condition that would make it unable for you to assist in your defense in this case or to be present in the case? Weren't you concerned about that?

"The Witness: Well, I wasn't--I have taken LSD before and it had never given me any bad effects, but I haven't taken it with Elavil before. That's when I started getting the bad effects. And so a friend suggested that I go to the hospital, and that's what I did. And they gave--I called the court and explained the situation. And while waiting for Emergency, I called the court. And they gave me medication to throw up. The pills came up with other particles and--

"The Court: All right."

FN 2. "The Court: All right. What I am going to do is grant the motion for a new trial. There are other problems here as well, but I am just going to consider this. I think the defendant had every intention of being present, and despite the fact that she engaged in an illegal activity. Perhaps, the Court shouldn't have even persued this line of questioning.

"I am going to grant the motion. I have some reluctance.

"Miss Cox during all of the times that the case has been trailing, that we have had to trail it, has always had to be here and she has always been here through the course of it. The fact that she is stupid in ingesting these narcotics during the course of the trial, I don't think reflects as a malicious or deliberate attempt to try to avoid a trial, but rather just total irresponsibility and unbelievable stupidity. That certainly could be grounds to deny her the motion for a new trial, but some how my feelings are that every defendant and every person should have their day in court.

"Since there is only one officer involved, I am going to, with some reluctance, grant the motion for a new trial. I think the showing is very, very poor, and it really is a gift, frankly, what I am doing."

FN 3. Although these cases, dealing with felony prosecutions, interpret Penal Code section 1043 prior to its amendment in 1970 and 1977 the amendments do not change the law, but merely serve as clarification. The legal reasoning is therefore applicable to this case. See People v. White (1971) 18 Cal. App. 3d 44, 53 [95 Cal. Rptr. 576].