Trial De Novo Denied

[epowerfan]

My question involves traffic court in the State of: CA

Speeding ticket in a county court 1 1/2 hrs drive from home. Entered a plea of not guilty by mail and got a trial date. Requested a continuance of the date because I didn't have a valid driver license due to improper action by the DMV (can demonstrate w/ evidence). My continuance request was denied-- without addressing the reason. I missed the court date, but since have got the DMV to restore/renew my license thru 2017.

I immediately requested a new trail by phone, until learning about VC sections 40902 and 40903, which seems clear that the court can only conduct a trial in defendant's absence if it's an Infraction and the defendant fails to appear. (Also if the defendant requests TBD)

I file a Request for New Trial form TR-220 (within 20 days) and the court sent an Order in reply that Denied a new trial. Only reason was: "Defendant is not entitled to a trial de novo following a trial by declaration because this matter proceeded as a court trial (not TBD) on trial date."

CAN I FILE ANOTHER REQUEST FOR TRIAL DE NOVO FR-220? Can I file an appeal of the Order denying me a new trail?

My 30 day limit to file an appeal of the whole case is up in a few days.


Newly compiled arguments for my new trial:

"The Court can only hold a trial of a defendant in absentia if an Infraction, the defendant fails to appear, so they deem it a Trial by Written Declaration under CVC 30903. (Or if the defendant requests and is granted TBD)

CVC 30902 requires that the defendant in a Trial by Written Declaration shall be granted a new trial if he is dissatisfied with a decision of the court. There is no time limit in CVC Section 40902 for the right to a new trial.

For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.

A 2004 ruling by the Arizona Supreme Court:
A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)

Although*Congress*codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.
Rule 43 provides that a defendant shall be present: at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict and
at the imposition of sentence.

The following exceptions are included in Rule 43: the defendant waives his right to be present if he voluntarily leaves the trial after it has commenced, if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom, a corporation need not be present, but may be represented by counsel, in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his written consent, and the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.
Several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through*disruptive behavior,*or through his or her voluntary absence after trial has begun. In 1993 the Supreme Court revisited Rule 43 in the case of*Crosby v. United States. The Court unanimously held that Rule 43 does not permit the trial*in absentia*of a defendant who is absent at the beginning of trial.

I reiterate:
The Court can only hold a trial of a defendant in absentia if they deem it Trial by Written Declaration under CVC 30903.

CVC 30902 requires that the defendant in a Trial by Written Declaration shall be granted a new trial if he is dissatisfied with a decision of the court.

I was unable to attend the trail date because I didn't have a valid driver license
due to the fault of the DMV, which I will demonstrate with evidence when I get my court trial.

The DMV has restored and renewed my driver license through 2017."

Thanks,

[That Guy]

Entered a plea of not guilty by mail and got a trial date. Requested a continuance of the date because I didn't have a valid driver license due to improper action by the DMV (can demonstrate w/ evidence). My continuance request was denied-- without addressing the reason. I missed the court date

Dates on every step above:

What date did you enter plea and make the request for a trial? (Date of your letter)

What date was your trial set for and what date were you notified of the trial date?

What date did you request a continuance and how did you make the request?

What date was your request was denied and how were you notified of the denial?

I immediately requested a new trail by phone

You failed to appear for your scheduled trial. Where do you get the idea that you have a right to a new trial?

... until learning about VC sections 40902 and 40903, which seems clear that the court can only conduct a trial in defendant's absence if it's an Infraction...

Define "it". If by "it" you mean the underlying charge for which you are being tried, then it is an "infraction"... A speeding violation is an "infraction"!

... until learning about VC sections 40902 and 40903, which seems clear that the court can only conduct a trial in defendant's absence if it's an Infraction and the defendant fails to appear. (Also if the defendant requests TBD)

For starters, you can't group 40902 and 40903 together so as to suggest that they both state the same thing. If they did, we would only need one of them, not both!

40902 related to the process of a TBWD. It describes the general details of the process, establishes the rules of court as further detail of the entire process, establishes the forms published by the judicial councel as requirements, sets the requirement and timing of bail payment, establishes evidentiary standards, and provides for an alternative if the defendant were to have complied for all the requirements and procedural steps including submitting a written declaration, the outcome, if not satisfactory can then be set aside in favor of an in court trial.

40903 simply states that any defendant who fails to appear for an in court trial, shall be deemed to have elected the option of a trial by declaration whereas the case can now be reviewed by simply reviewing whatever documentary evidence happens to have made it into the file including any requests, letters, motions, and subsequent responses from the court. That does not by any means suggest that if you fail to appear you can, by virtue of CVC 40903, request a trial de novo. Simply because the only time you can request a "trial de novo" is if in fact you did request a TBD, you submitted an actual declaration, that declaration along with one received from the officer were reviewed, and a guilty verdict was made in the case.

In your case, you never did submit a declaration. So you have no right to a trial de novo. So not only were you "absent" from your trial, but so was any reasonable documentary evidence which can be utilize to even begin to hear your case, but to even begin to consider your non-guilt or innocence.

So where do you even begin to assume that a trial was held in absentia? Or where do you get the idea that a judgement of "guilty beyond a reasonable doubt" was entered against you or that you were "sentenced"?

If you want to analogize a process, there was no trial, you were found guilty by default for not appearing to challenge the evidence against you, and your bail money was converted into the fine amount and the case was closed.

I file a Request for New Trial form TR-220 (within 20 days) and the court sent an Order in reply that Denied a new trial. Only reason was: "Defendant is not entitled to a trial de novo following a trial by declaration because this matter proceeded as a court trial (not TBD) on trial date."

All procedurally sound and legally proper!

Can I file an appeal of the Order denying me a new trail?

My 30 day limit to file an appeal of the whole case is up in a few days.

You have no recourse for an appeal. You were not found guilty after trial. You failed to appear at trial.

Here are the circumstances under which you can appeal an infraction case:

Penal Code section 1466.

An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases:

(a) By the people:

(1) From an order recusing the district attorney or city attorney pursuant to Section 1424.

(2) From an order or judgment dismissing or otherwise terminating all or any portion of the action, including such an order or judgment, entered after a verdict or finding of guilty or a verdict or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.

(3) From sustaining a demurrer to any portion of the complaint or pleading.

(4) From an order granting a new trial.

(5) From an order arresting judgment.

(6) From any order made after judgment affecting the substantial rights of the people.

(7) From the imposition of an unlawful sentence, whether or not the court suspends the execution of sentence. As used in this paragraph, "unlawful sentence" means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court that strikes or otherwise modifies the effect of an enhancement or prior conviction. A defendant shall have the right to counsel in the people's appeal of an unlawful sentence
under the same circumstances that he or she would have a right to counsel under subdivision (a) of Section 1238.

(8) Nothing in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition that is filed within 60 days after probation is granted.
The review of any grant of probation shall include review of any order underlying the grant of probation.

(b) By the defendant:

(1) From a final judgment of conviction. A sentence, an order granting probation, a conviction in a case in which before final judgment the defendant is committed for insanity or is given an indeterminate commitment as a mentally disordered sex offender, or the conviction of a defendant committed for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment or an order
granting probation the court may review any order denying a motion for a new trial.

(2) From any order made after judgment affecting his or her substantial rights.

Newly compiled arguments for my new trial:

I think you'd be better off attempting to find an argument to get a new trial. (Which -assuming all the dates fit the requirements- you will not get a new trial).

"The Court can only hold a trial of a defendant in absentia if an Infraction, the defendant fails to appear, so they deem it a Trial by Written Declaration under CVC 30903. (Or if the defendant requests and is granted TBD)

CVC 30902 requires that the defendant in a Trial by Written Declaration shall be granted a new trial if he is dissatisfied with a decision of the court. There is no time limit in CVC Section 40902 for the right to a new trial.

For starters, there is no CVC 30903... I suspect you mean 40903;

Second, 40903 is NOT by any means the only procedure to handle your failure to appear. The court has a straight forward process which eliminates you having any feelings of entitlement and/or feeling a violation of any of your perceived or statutory rights.

California Vehicle Code section 40512.5.

(a) Except as specified in subdivision (b), if at the time the case is called for trial the defendant does not appear, either in person or by counsel, and has not requested in writing that the trial proceed in his or her absence, the court may declare the bail forfeited and may, in its discretion, order that no further proceedings be had in the case, or the court may act pursuant to Section 1043 of the Penal Code. However, if the defendant has been charged with a violation of Section 23111 or 23112, or subdivision (a) of Section 23113, and he or she has been previously convicted of a violation of the same section, the court may declare the bail forfeited, but shall issue a bench warrant for the arrest of the person charged, except if the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings shall be had in the case.

(b) If the defendant has posted surety bail and the magistrate has ordered the bail forfeited and that no further proceedings shall be had in the case, the bail retains the right to obtain relief from the forfeiture as provided in Section 1305 of the Penal Code if the amount of the bond, money, or property deposited exceeds seven hundred dollars ($700).

^THAT, is the default procedure that the court will utilize 99.9999% of the time.

So no trial in absentia, no trial by declaration, no new trial request, no claim of of a violation of your constitutional right to be present... None.

You fail to appear, your case is closed, you are deemed guilty as charged and your bail is converted to cover the fine amount.

Over and done!

All of which makes all the following moot and pointless:

For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.

A 2004 ruling by the Arizona Supreme Court:
A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)

Although*Congress*codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.
Rule 43 provides that a defendant shall be present: at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict and
at the imposition of sentence.

The following exceptions are included in Rule 43: the defendant waives his right to be present if he voluntarily leaves the trial after it has commenced, if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom, a corporation need not be present, but may be represented by counsel, in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his written consent, and the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.
Several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through*disruptive behavior,*or through his or her voluntary absence after trial has begun. In 1993 the Supreme Court revisited Rule 43 in the case of*Crosby v. United States. The Court unanimously held that Rule 43 does not permit the trial*in absentia*of a defendant who is absent at the beginning of trial.

I reiterate:
The Court can only hold a trial of a defendant in absentia if they deem it Trial by Written Declaration under CVC 30903.

Not true!

CVC 30902 requires that the defendant in a Trial by Written Declaration shall be granted a new trial if he is dissatisfied with a decision of the court.

Incorrect, inapplicable and that much farther from being true!

I was unable to attend the trail date because I didn't have a valid driver license due to the fault of the DMV, which I will demonstrate with evidence when I get my court trial.

You won't get a new trial and you're free to demonstrate here what and how was the DMV's fault for not issuing/renewing/reinstating your license. Fact is, you could have opted for other modes of transportation if you were unable to drive. Alternatively, having an invalid license is often a matter that does not creep up on us; (example -if an expired license was the issue here: we know the expiration date ever since the license was issued).

It may depend on why your request for a continuance was denied (which you opted to not disclose), but presumably, you could have filed it in a timely manner, or in the alternative you could have not requested a trial at the time you did... Point is, you're grasping for straws none of which are bound to work in your favor and the longer you delay simply facing reality, the more frustrated you will be.

The DMV has restored and renewed my driver license through 2017."

And see... There is an upside to everything!

[epowerfan]

The court sent me a letter that they held the trial in my absence and found me guilty.

The Order denying my Req for new trial also stated it was a court trial not a TBD.

I must have entered a declaration of sorts when I plead not guilty by mail and posted bail to get a trial.

My very sound reason for requesting a continuance was completely ignored, and the Order denying it was nonsensical. "Court will consider delay in sentence if defendant found guilty to allow defendant to get license." ?? The court is 1 1/2 hour drive for me.

Have you ever been pulled over by a CHP... to find out the DMV suspended your driver license without notifying you? And later find out it was because of an 11 year old alleged parking ticket in another state where you used to live? The CHP could have impounded my car.

I got the run-around from the DMV for months and I finally had to sue the DMV (writ of mandate) to get them to reverse their illegal suspension. CVC 15024 set me free.

I've never heard of someone being tried in their absence. Did a lot of research on CA law "trial in absentia" and there's a lot of articles about citizen's legal protection against it.
....Which I posted and you made fun of.

I haven't been able to find a law that permits the court to hold a trial against a defendant in their absence--except for 40903 & 40902.
I also haven't found a specific CA code or law that forbids the court from trial in absentia-- but it seems as I'm writing, your post is lengthening with that info.

Thanks, I'll read the rest.

[quirkyquark]

The following things happened:

1. You pled not guilty and received a trial date.
2. You asked for a continuance and it was denied.
3. As REQUIRED, you did not appear on the trial date, whether to make another motion for a continuance or to simply go through the trial.
4. So the court looked at the evidence (presumably the officer was present), and found you guilty.

Here's the law which allows the court to do that ("trial in absentia"), for misdemeanors and infractions:

(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.

The bolded path is exactly what the court followed.

All of this has nothing to do with a trial by declaration, so you have no recourse for that. VC 40903 "Any person who fails to appear as provided by law may be deemed to have elected..." applies only to appearances (arraignments), and only gives the court one more alternative to choose from at its discretion. In practice if you fail to appear, most courts will simply add an FTA and send you a notice with a new appearance date.

If you wanted to appeal something, that would have been the denial of your continuance -- before trial!

So where do you even begin to assume that a trial was held in absentia? Or where do you get the idea that a judgement of "guilty beyond a reasonable doubt" was entered against you or that you were "sentenced"?

If you want to analogize a process, there was no trial, you were found guilty by default for not appearing to challenge the evidence against you, and your bail money was converted into the fine amount and the case was closed.

This is incorrect. Defendants are presumed innocent, and cannot be found guilty "by default." A mere citation is not evidence of guilt. In this case,a trial was held in absentia, the officer was present, and testified against the defendant. This has happened in multiple trials I have sat on. In cases where the officer and the defendant were both absent, the judge either continued the case, or if there was a mass dismissal of cases where the officers hadn't shown up, dismissed it.

[That Guy]

I must have entered a declaration of sorts when I plead not guilty by mail and posted bail to get a trial.

Yeah, I am sure you made plenty of declarations; unfortunately, none would qualify as a trial by written declaration since such a request must be made on a special form; in fact, knowing your license was suspended, and that you could not drive the 1 1/2 hours and you opted to not explore other modes of transportation, a trial by declaration would have been THE ideal choice. You simply did not choose that though!

15024.

Upon application for a license to drive, the licensing authority in a party state shall ascertain whether the applicant has ever held, or is the holder of a license to drive issued by any other party state. The licensing authority in the state where application is made shall not issue a license to drive to the applicant if:

(1) The applicant has held such a license, but the license has been suspended by reason, in whole or in part, of a violation, and if such suspension period has not terminated.

(2) The applicant has held such a license, but the license has been revoked by reason, in whole or in part, of a violation, and if such revocation has not terminated; except that after the expiration of one year from the date the license was revoked, such person may make application for a new license if permitted by law. The licensing authority may refuse to issue a license to any such applicant if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways.

(3) The applicant is the holder of a license to drive issued by another party state and currently in force, unless the applicant surrenders such license.

As you can see, 15024 says nothing as to the validity or lack thereof the reasoning for a suspension due to non-payment of a parking violation in another state. Only that after a year, you can re-apply and as long as it is not a safety issue, the DMV can reissue your license. So for all intents and purposes, you may still have a parking citation that is pending in another state. And the validity of VC 15024 along with you stating you utilized it to get the DMV to reissue your license, validates the DMV's authority to suspend your license for a delinquent parking citation in another state as part of its commitment and duty to enforcing the provision of the DLC. That said, was the reason for the suspension valid? You never disputed the validity of a parking citation from another state, so I assume the suspension was justified!

As for the lack of notice from the DMV, I suspect it was not due to the DMV simply not sending you notice but more likely because they sent it to the address they had on record which turned out to be an old address which means you clearly failed to keep them notified of your current address.

Neither of those issues are related to the court matter and neither issue obligates the court to grant you a continuance upon request. So you ran around for months arguing with the DMV to reinstate your license which would suggest you knew for months that you could not drive to the courthouse 1 1/2 hours away? And yet you requested a court date?

The CHP could have impounded my car.

And who's fault would that have been? The DMV's? The CHP's? The Court's? Or your own?

My very sound reason for requesting a continuance was completely ignored, and the Order denying it was nonsensical.

I think you have that backwards. The court had sufficient reason to deny your request for a continuance of a court trial which you yourself had requested shortly before. The nonsensical part is: why would you obligate yourself to a court trial by affirmatively submitting a written request for an in court trial, only to then request that the trial be continued because you could not appear for the trial which you yourself had requested? And your requested to have it continued until when? or for how long? That too can make a huge difference.

You failed to answer any of the specific questions I asked of you at the top of my post about the specific dates in how these matters proceeded. And so I am unable to comment or offer any direction as to the legality of your requests and the extremely slim chance that you might be able to get any closer to a court date. As for the letter you received from the court telling you a trial was held, it would be interesting to see such letter so if you could redact your personal information from the letter, and you could upload an image of it to a web hosting site, please post a link to the image here in this thread.

I've never heard of someone being tried in their absence.

Apparently you did not research enough...

You were cited for speeding... i.e., an infraction of the California Vehicle code.

Section 19.6 of the California Penal Code states:

19.6. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail.

With those exceptions in mind, section 19.7 of the California Penal Code states:

19.7. Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof.

And so since provisions under PC 1043(e) apply to misdemeanors, by virtue of PC 19.7, they would apply to infractions as well (and I've underlined the provisions which authorize the court's actions in this case):

1043 (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.

And so the court having found that no good cause existed for you not to appear at a trial which you yourself requested, and having established that you had full knowledge of the date your trial was scheduled to be held, and yet you voluntarily absented yourself, the court proceeded with the trial as authorized by law. I don't know whether you "waived time before sentencing" or whether you are still awaiting sentencing but clearly, the matter has been adjudicated and there is no recourse from here.

I haven't been able to find a law that permits the court to hold a trial against a defendant in their absence

Now you have...

Did a lot of research on CA law "trial in absentia" and there's a lot of articles about citizen's legal protection against it.
....Which I posted and you made fun of.

You researched a lot about CA law, and yet what you posted was about the Fifth, Sixth, and Fourteenth Amendments, about a 2004 ruling by the Arizona Supreme Court; about *Congress*, Rule 43 of the Federal Rules of Criminal Procedure.... etc, none of which applies here.

The one single provision which still isn't related here is that you posted :

[U.S. Supreme Court] unanimously held that Rule 43 does not permit the trial*in absentia*of a defendant who is absent at the beginning of trial.

And while that does indeed prove to be a requirement under California law as well, unfortunately, it only applies to felony trial, but not misdemeanor trial and by association, certainly not infraction trial.

So I stated that it is moot and pointless! Which it is!

You apparently have read my attempts at making fun of something. So just let that go...

Now, let me take this a step further to hopefully make you feel more comfortable that this battle you're attempting will likely prove futile in the end. Usually when someone is cited while driving that far from home, it typically happens on a freeway or a highway that is subject to the state's maximum speed, and they are then issued a citation under VC 22349 (a) or (b) and that particular code section leaves very little leeway for a defendant to come close to winning in court simply because all the officer has to do is to simply state that he clocked or measured your speed in excess of 65mph or 55mph and you're pretty much done and left with very little to overcome his measurement or his testimony. If I am correct about you being cited for either of those code sections, and while you're free to continue fighting this matter with the hope that you can have a day in court only to end up with it being a minute and a half and... case over, you are found "guilty"!

[quirkyquark]

GROUNDS FOR APPEAL?

All of the above said, a review of case law shows that you have two possible grounds for appeal, involving your absence at the trial and at the judgment/sentencing. If you have the time to spend, I'd recommend filing a notice of appeal and going for it.

A. ABSENCE AT TRIAL

I suggest you read this opinion - People v. DiSandro (2010) 186 Cal. App. 4th 593 from cover to cover, and then read it again. That will be the lynchpin of your arguments in this section.

The basic requirement is that court must make a finding (on the record) that your absence is knowing and voluntary.

A trial court abuses its discretion under Penal Code section 1043 if it proceeds with the trial without an adequate showing that the defendant's absence is a knowing and voluntary one. Before it can make a finding that a defendant's absence is knowing and voluntary, a trial court must make reasonable inquiry and have "sufficient facts before it." The defendant must be given a "full opportunity to explain his absence." The court cannot "look solely at the facts initially before the court" but must base its determination "upon the totality of the facts; not just a portion of them." "Mere absence standing alone is purely equivocal."

In People v. Connolly, supra, 36 Cal.App.3d at pages 383, 385-386, for example, the defendant failed to appear for the second day of trial, and the court held a special hearing to determine the reason for the defendant's absence. The trial court properly completed the trial without the defendant present only when it was convinced by the evidence that the absence was voluntary and knowing. (Id. at p. 385.) In People v. Howze (2001) 85 Cal.App.4th 1380 [102 Cal.Rptr.2d 887], a knowing and voluntary waiver was found when a defendant who was in custody refused to come out of his cell for the commencement of trial. The defendant had been warned more than once this would be considered a waiver of his right to be present. In addition, two days prior to his trial date in open court, the defendant unequivocally stated he would not attend any further court appearances. (Id. at pp. 1395-1396.) A waiver was found under these circumstances even though the defendant's oral statement on the record did not strictly comply with the writing requirements for felony defendants set forth in Penal Code section 977. (Howze, at pp. 1395-1396.)

Here, the traffic court made no finding defendant was knowingly and voluntarily absent at the commencement of trial on January 6, 2009. The record is silent as to whether the traffic court took any steps to determine the reason for defendant's absence. The traffic court's minutes for this day merely state, "Defendant is Not Present."

So you would need to get your hands on a copy of the court's docket/minutes from that day, and any other papers. Get the electronic recording if it exists, just to find out what the officer testified to/presented. And if no finding/inquiry was made on the record, you have a good shot at this. Post whatever you get here. Then file the notice of appeal right away. (But read below...)

However, this error is considered "harmless" unless you can show to the (appellate) court that there is a reasonable probability your presence would have led to a different outcome. So based on your violation, your appeal should include what defenses (if any) you could have made in person, cross-examination, etc.:

The right to presence during the trial of a traffic infraction was created by statute under Vehicle Code sections 40512.5 and 40901 with reference to Penal Code section 1043. Because the right was conferred by the state, any errors are evaluated under the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. Under that standard, reversal is only warranted for a miscarriage of justice if it "is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 836.) In addition, "[d]efendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial. [Citations.]"

Although it is our view the traffic court erred when it proceeded with trial in defendant's absence without making appropriate inquiries into the reasons for the absence in order to determine whether it was both knowing and voluntary, the record indicates the error was harmless. The case, of course, is not a complex one as it involves only two minor traffic infractions. Defendant has not even presented a colorable argument as to why she would not have been found guilty of both traffic infractions if she had been present at trial. She has made no claim of factual innocence. She does not contend the officer had no valid grounds to issue the citation. Nor does she present anything to suggest there was a possibility the amount of the fines imposed immediately following trial could have been affected in any way by mitigating circumstances she would have presented if she was there. Defendant merely claims she could have cross-examined the officer to challenge his observations and argued she was acting within the scope of her employment duties when she was cited. Thus, there is nothing to indicate she had a viable defense to either infraction. Nor are there any reasons to believe the results of the proceeding would have been different if defendant had been present at the time of trial. Under these circumstances, we can only conclude the error was harmless.

Of course, if you have the wherewithal in time/effort, in addition to the above you would also argue that notwithstanding DeSandro, you have a federal constitutional right to be present at trial (Sixth Amend.), opening up the possibility of per se/Chapman reversal which does not require harmless error analysis. But you'll need to back this up with case law, since DiSandro holds there is no such right.

B. ABSENCE AT SENTENCING

This definitely applies to you regardless of what happened at court; the problem is that while you can ask for reversal/dismissal based on precedent, the appellate division can also choose to resolve this by ordering the trial court to re-pronounce the judgment/sentence in your presence without changing its verdict.

The essential precedent here is People v. Kriss (1979) 96 Cal. App. 3d 913. Read it.

The right of the accused to be present at all stages of the proceeding is grounded on article I, section 15 (formerly section 13) of the California Constitution: “The defendant in a criminal cause has the right . . . to be personally present with counsel . . . ”

For verdict/judgment only, the same "knowing and voluntary" standard described in section A applies:

ABSENCE AT THE ADJUDICATION OF GUILT ... Section 1043 is in harmony with California Constitution, Article I, section 15 by providing for a voluntary absence from the proceedings with full knowledge that the trial is being held.

For sentencing/post-trial phase as a whole:

The statutes discussed above (sections 977; 1043, subd. (e); 1148; 1167; 1193, sub. 2; and 1449) may be harmonized with the provisions of the Constitution by holding, as we now hold, 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. Such a construction satisfies due process, the constitutional provision and all the statutes recited.

Prejudice (i.e. error was not harmless) must be shown as follows:

People v. Williams (1970) 10 Cal.App.3d 745 ... does establish that the defendant must show some prejudice from his not being present during the proceedings. ... However, in the cases under consideration the defendants were unrepresented and they lost the substantial advantages that would have been available to them as expressed in In re Levi, supra:

“A defendant has substantial rights at the time he is arraigned for judgment, because he may be able to show good cause why the judgment should not be pronounced against him. He may be able to show that there is good cause to believe that he is insane, or that there is good cause to order a new trial, or that there is good cause to grant a motion in arrest of judgment. If judgment is pronounced in his absence, he is deprived of these rights.”
...
To those rights might be added the consideration that the defendant might be able to mitigate his sentence by making appropriate comments to the judicial officer, a common occurrence in sentencing traffic violators.

Given relatively minor nature, case should simply be reversed/dismissed (but your court may not do that!):

So long as traffic violations are adjudicated in court, the letter and spirit of misdemeanor procedure should be followed.
...
As the records in these cases show no waivers of the defendants' rights to be present at the adjudication and pronouncement of judgment, these judgments of conviction must be reversed. Because of the disposition we make of these cases, it is unnecessary for us to discuss other contentions made in the appeals. Given the relatively minor nature of the infractions involved and the fines imposed, and the necessity for re-trials which an unqualified reversal would require, we conclude that in these instances it would not be in the interest of justice to prolong these matters. Accordingly, the judgments are reversed with directions to dismiss the complaints. People v. Bighinatti (1975) 55 Cal.App.3d Supp. 5 at Supp. 7.

[epowerfan]

ThatGuy and quirkyquark,

Thank you both very much for the masses of information and ideas you offered.
I wouldn't have dreamed my post here would yield much, esp. in a short time, cause if I appeal it needs to be by Monday.

Don't think it's an excuse, but the DMV's actions have been atrocious. I've lived in the same place for over 9 yrs, renewed my license last time in '07. About 18mos previous to the CHP ticket for 'driving w/o a valid license' I had a traffic ticket for which I did traffic school; that officer didn't notify me or cite me for driving w/o license. If DMV had notified me of the other State hold, I would've been all over it, like I did when the CHP for this ticket didn't impound my car. DMV staff told me many different stories by phone, claiming they notified me in '02 or '06, which can't be true.

I called the other State and they have very few records. They can't tell me what code I allegedly violated, but by the orig fine of $35 I suspect it was parking. The D.A. office there didn't have evidence of a specific violation, yet refused to withdraw the charge, so the State could try to extort $200 to release my old license there. Due process lacking.

The first notice of the action from DMV was 3 weeks after the ticket-- only after I called them. DMV refused several times to allow me an Administrative hearing, but only once in writing, and that was with a BS reason. '...no admin hearing because DMV has taken no adverse action against you.'

When I found out about VC 15024 from the judge at the first court appearance, I was confident I could get DMV to relent without finishing that lawsuit. A weasel lawyer for the DMV actually suggested a lame circular argument to me on the phone, that 15024 could be used to deny me a license if DMV deems it not safe to grant me privilege of driving on highways.

DMV restored/renewed my license, which had about a month left before expiring. DMV clerk signed off my CHP ticket. DMV never notified me in writing of their harmful action or about the correction. They told me verbally that my upcoming renewal would go smooth. Well it didn't.

A week after the expire date I called to follow up on why they hadn't sent my new license yet. They told me about the hold on my license by the other State! 2nd time in 6 mos the DMV withdrew my license without notifying me.
This was 10 days before my scheduled court appearance at the county 1 1/2 hours away from me.


I've got a lot to read above. Thanks very much guys!

[quirkyquark]

cause if I appeal it needs to be by Monday.

Then FILE IT MONDAY. That deadline is one which can never be changed, and you don't need to provide any details on the notice of appeal. You're not obligated to follow through at any step either -- if you default, they will simply dismiss the appeal, leaving the verdict standing.

[themadnorwegian]

You're not obligated to follow through at any step either -- if you default, they will simply dismiss the appeal, leaving the verdict standing.

On the other hand, if you intend to abandon an appeal, it would be polite to follow Rule of Court 8.904 and file a CR-145.

[quirkyquark]

On the other hand, if you intend to abandon an appeal, it would be polite to follow Rule of Court 8.904 and file a CR-145.

Yes, that would be advisable.