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The People v. Bryan James Howick


December 6, 2010


(Alameda County Super. Ct. No. H44218)

The opinion of the court was delivered by: Needham, J.

P. v. Howick CA1/5


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Bryan James Howick appeals from a judgment of conviction for attempted first degree premeditated murder and personal use of a deadly weapon. (Pen. Code, §§ 187, subd. (a); 664, 12022, subd. (b)(1).) He contends the court erred in proceeding with the trial in his absence, because he voluntarily refused to appear at the commencement of trial, as well as at all other stages of the trial. We will affirm the judgment.


A second amended information charged Howick with attempted first degree premeditated murder. (Pen. Code, § 187, subd. (a), 664.)*fn1 The information alleged that, in the commission of the offense, Howick personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly weapon (§ 12022, subd. (b)(1)). It was further alleged that Howick had a prior conviction for making criminal threats (§ 422), which constituted a prior strike (§ 1170.12, subd. (c); § 667, subd. (e)(1)) and a prior serious felony conviction (§ 667, subd. (a)), and that he served prior prison terms (§ 667.5, subd. (b)). Howick entered a plea of not guilty and denied the allegations.

A. Order for Physical Restraints

Before trial, the prosecutor sought an order that Howick be physically restrained during trial, in light of his past violent episodes. At the ensuing hearing, Alameda County Deputy Sheriff Ron Rodriguez testified to Howick's conduct at a March 2008 Marsden hearing before another judge. After the court denied the Marsden motion, the deputy asked Howick to leave the courtroom with him. Howick stared at the deputy, announced that the deputy was "just going to have to move" him, stood up and assumed a defensive stance. When Deputy Rodriguez tried to escort Howick out, Howick grabbed him and the two engaged in a struggle that the deputy characterized as one of the scariest and most violent he had ever experienced. Other witnesses testified to additional incidents of Howick's temper and violent outbursts.

The trial court found "there [was] an imminent necessity" to restrain Howick physically, citing Howick's quick temper, lack of anger management, and large size (estimated at "between I would say six-three and six-five, and . . . well over 250 pounds"). The court concluded that Howick's "fits of violence and rage really indicate that counsel, any jurors, the deputy sheriffs in this courtroom, the clerk, everybody would be in danger should Mr. Howick not be restrained."*fn2

The court intended to have Howick wear a waist restraint, with a curtain that would cover his lower body so the jury could not see it. Howick's left hand would also be restrained, and the court was willing to give an appropriate jury instruction in case it was visible to the jury. The prosecutor noted that that the jury would not be able to see it unless Howick chose to raise his left hand.

Defense counsel argued that the restraints would have a chilling effect on Howick's right to testify, and Howick had stated that he would not attend his trial in shackles. Howick himself added, "It's prejudicial. I waive my right to appear . . ." The court noted that if Howick wore long sleeves and kept his arm down, the jury would not see the restraints, and since he was right-handed he could still write and communicate with his attorney.

B. Howick's Refusal To Attend The Trial

A few days later on July 20, 2009, when the court was ready to call in the jury panel, Howick was present in the courtroom and represented by counsel. The court repeated its intention to shackle Howick and noted that defense counsel had indicated Howick's decision not to be present in the courtroom. Howick confirmed his decision. The court made sure Howick knew he had a right to attend the trial: "THE COURT: Okay. Mr. Howick, you understand you have a constitutional and statutory right to be present at your trial; you understand that? [¶] THE DEFENDANT: My concern is the bias the shackles are going to generate and I have a constitutional right to due process and this is a violation of my due process right, and I think it's unfair that I should be seen in shackles and give up the presumption of innocence for, in my mind there's no reason at all."

The court informed Howick that a speaker would be hooked up in a holding cell so he could hear the proceedings. The court then again asked Howick: "And you understand you do have a right to be present in the courtroom? I'm going to bring you out every morning and every afternoon and ask you if you have changed your mind and ask you if you want to come in; do you understand?" Howick confirmed that he understood and that he wanted the speaker hookup. The court asked, "And you do voluntarily waive your presence in front of the jury, at least for this first hearing, part of the trial?" Howick stated: "I waive my presence in front of the jury because I don't want them to know that I'm in custody and at the same time I don't want to be seen in shackles."

The prosecutor reiterated that a curtain would hide the waist shackles from the jury's view and no one would see the wrist shackle if Howick kept his left arm down. Howick then refused to attend the trial because he had not been able to get a haircut. He also complained that, although civilian clothes were available to him, they did not fit properly. He claimed that if he had clothes that fit, a haircut, and was not shackled he would appear in the courtroom and testify. Otherwise, he refused to appear even for jury selection.

Howick proceeded to give an extended explanation of his grievances with the jail and other matters. The court asked him again if he wanted to be present for jury selection, and Howick replied, "No, sir, your Honor, I don't want to be present. I'm not violent, I didn't commit this crime." The court arranged for Howick to hear the trial proceedings in a holding cell.

The prosecutor asked Howick to sign a written waiver form pursuant to section 977, but Howick refused. (See § 977, subd. (b)(1) [excusing defendant's presence during certain portions of trial upon a written waiver].)

Jury selection began later that same day. The trial court asked Howick if he wanted to attend the proceeding, and Howick responded, "I'm never going to come in here under the circumstances of being shackled, your Honor."

On July 21, 2009, the court again asked Howick if he wanted to attend the proceedings, and Howick replied that he did not want to be present in shackles. He then requested a Marsden hearing, and the court held one. The jury was sworn on July 21, 2009.

After preinstructing the jury, the court spoke to Howick outside the jury's presence. The court again asked Howick if he wanted to be in the holding cell with the speakers or to attend the proceedings personally. Howick stated that he did not think it necessary to keep coming back to court to "continually restate the fact that I'm not interested in appearing without civilian attire and in these prison shackles shackled to the floor. . .."

The next morning the court again asked Howick if he wanted to appear at the trial. Howick again refused. The following morning, and repeatedly throughout the trial, Howick reiterated that he did not want to be present for his trial if he had to wear physical restraints.

C. Evidence at Trial

Because the evidence at trial is not material to the issue on appeal, we provide only the following brief summary.

In 2005, Howick began to participate in a substance abuse program called the Seven Step Foundation. After four or five months, he was terminated for failing to follow the program rules. After he became upset and threatened to "blow his brains out," he was allowed to return to the program in October 2006. Howick again broke the rules, and his case manager, Norman Thomas (Thomas), terminated him from the program. Howick became angry and upset. Howick was given yet another chance with the program and was permitted to live in transitional housing. When Howick failed to comply with the rules again, Thomas told him in August 2007 that he had to leave. Howick did not take it well.

In January 2008, Howick confronted Thomas outside Thomas's apartment. Howick was holding a knife in his raised right hand, and told Thomas "It's time to meet your maker." Howick then thrust his arm forward toward the left side of Thomas's chest. Thomas raised his left arm in defense and was cut by Howick's blow, sustaining a two-inch gash in his arm. The two proceeded to "tussl[e]" for 15 to 20 seconds, swinging and grabbing at each other. Thomas tried to calm Howick, using his conflict resolution skills. When he asked Howick why he was doing this, Howick replied that "they" told him to do it, pointing to his head. Another resident opened a door, and Thomas ran up the stairs and into his apartment to safety. The police subsequently apprehended Howick; his boots matched a footprint on the back of Thomas's jacket.

D. Verdict and Sentence

On July 28, 2009, the jury found Howick guilty of attempted first degree premeditated attempted murder and found that he personally used a deadly weapon. The jury did not find that he personally inflicted great bodily injury. At a bifurcated trial on Howick's priors, the jury found true the allegation that he suffered the prior conviction for criminal threats.

Howick was sentenced to an indeterminate prison term of life with the possibility of parole for attempted first degree premeditated murder, consecutive to a determinate term of seven years, comprised of five years for the prior serious felony conviction (§ 667, subd. (a)), plus a consecutive two years (one year doubled for the prior strike) on the deadly weapon use enhancement (§ 12022, subd. (b)(1)).

This appeal followed.*fn3


Howick does not contend that the court erred in ruling that Howick would be shackled if he appeared at the trial. He contends only that the court erred under section 1043 in proceeding with the trial once he proclaimed that he would not attend, because he refused to be personally present for jury selection as well as the rest of the trial. We review the matter de novo and conclude his argument is untenable. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez) [de novo review].)

A. Applicable Law

A criminal defendant has a right under the federal and state constitutions to be present at trial. (United States v. Gagnon (1985) 470 U.S. 522, 526; Gutierrez, supra, 29 Cal.4th at p. 1202.) That right, however, may be waived. (Gutierrez, supra, 29 Cal.4th at pp. 1202-1203.)

The state constitutional right to be present at trial is implemented by sections 977 and 1043. (Cal. Const., art. I, § 15; Gutierrez, supra, 29 Cal.4th at p. 1202.) Under section 977, in felony cases "the accused shall be present" during certain proceedings including "those portions of the trial when evidence is taken before the trier of fact," and is entitled to be present at all other proceedings unless he files a written waiver of his right. (§ 977, subd. (b)(1).) Here, Howick did not sign a written waiver.

Section 1043, subdivision (a) provides: "Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial." An exception is set forth in section 1043, subdivision (b)(2), which reads: "The absence of the defendant in a felony case 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." A voluntary absence within the meaning of section 1043, subdivision (b)(2) permits the trial to proceed even as to portions of the trial that a defendant would otherwise have to attend under section 977. (Gutierrez, supra, 29 Cal.4th at pp. 1203-1204.)

Howick's challenge to the judgment is limited to an argument that the voluntary absence exception in section 1043, subdivision (b)(2) did not apply.

B. The Exception Under Section 1043, Subdivision (b)(2) Applied

The exception of subdivision (b)(2) applies where the defendant was voluntarily absent "after the trial has commenced in his presence." (§ 1043, subd. (b)(2), italics added.) It has been assumed that this exception applies only if the defendant was present when the trial commenced. As such, questions arise as to when a trial commences and whether a defendant was present for this purpose.

In People v. Molina (1976) 55 Cal.App.3d 173 (Molina), the court held that trial commences as set forth in Evidence Code section 12, subdivision (b)(1) and when jeopardy attaches. (Molina, at p. 177.) The Evidence Code provision dictates that trial begins "when the first witness is sworn or the first exhibit is admitted into evidence"; jeopardy attaches once "the jury is duly impaneled and sworn to try the cause." (Molina, at p. 177.) Because the out-of-custody defendant's absence in Molina began before those events, the Molina court held that the defendant was not present when trial commenced, subdivision (b)(2) did not apply, and the trial court had erred in proceeding with the trial without him. (Molina, at p. 177.) Howick argues that, as in Molina, his absence began before the jury was impaneled and sworn, the first witness was sworn, and an exhibit was admitted, and therefore the exception to section 1043 does not apply and his conviction must be reversed.

The problem with the rule in Molina, of course, is that it invites a criminal defendant to work the system to avoid a trial: by simply beginning his refusal to attend the proceedings before the jury is sworn, rather than after, the defendant can effectively stop the trial from occurring because the court and prosecutor will know that any resulting conviction would be reversed. Plainly this is not what the Legislature had in mind when drafting section 1043, at least when it is apparent that the defendant knew of the trial and his right to attend. Indeed, no reported decision has followed Molina.

Several courts have rejected the Molina rule. The court in People v. Lewis (1983) 144 Cal.App.3d 267 (Lewis) - from the same appellate district as Molina - explained that Molina's use of Evidence Code section 12 and jeopardy rules to determine when a trial commences for purposes of section 1043 is inappropriate, since those rules have nothing to do with the policy goals of section 1043. Those goals are (1) "to insure [the defendant] has voluntarily and knowingly waived his right to be present for trial" and (2) "to avoid claims, perhaps spurious and certainly difficult to disprove, that the defendant was absent because he could not find the courtroom or thought the trial started on a different day, or another of the thousand and one explanations for failing to appear in the appointed place at the appointed time." (Lewis, at pp. 276, 278-279.) Lewis concluded: "Since the only function [of the requirement that the defendant's "presence" at the commencement of trial] is to insure the defendant really makes a voluntary and knowing waiver of his right to be present at the trial proceedings, it is not necessary that the jury have been sworn or the first evidence introduced. It is enough the defendant is physically present in the courtroom where the trial is to be held, understands the proceedings against him are underway, confronts the judge and voluntarily says he does not desire to participate any further in those proceedings." (Lewis, at p. 279, italics added.) Lewis ruled that the defendant, who (like Howick) had refused to participate in the proceedings before jury selection and was absent from the courtroom when jury selection began, waived his right to be present at trial within the meaning of section 1043, subdivision (b)(2). (Ibid.)

The Lewis rule was embraced in People v. Ruiz (2001) 92 Cal.App.4th 162 (Ruiz), in which another in-custody defendant had voluntarily refused to appear at trial before jury selection. Expressly rejecting Molina, the court found that Lewis "produces the most reasonable interpretation of section 1043, particularly when the defendant is in custody. . . . Nothing in the language of or policy behind section 1043 suggests that the defendant must wait to waive his personal presence until a time later than the moment after he appears before the court for trial. No legitimate objective is served by requiring the waiver of one's presence to occur only after the potential jurors have been sworn for voir dire, the jury is impaneled or the first witness is sworn. Indeed, delaying the allowance of a defendant's absence could lead to unnecessary hostility if the defendant tries to gain the desired absence by becoming 'disorderly, disruptive and disrespectful of the trial court' (§ 1043, subd. (b)(1)) or by threatening to become so. Additionally, if the defendant's absence occurs after the jurors have participated, the court's task in explaining the defendant's absence becomes more difficult." (Ruiz, at pp. 168-169.) Because the defendant was physically present in the courtroom where the trial was to be held, understood the proceedings against him were underway, voluntarily informed the judge that he did not desire to be present for the proceedings, and confirmed with counsel that counsel would participate in trial, the defendant's trial was commenced in his presence within the meaning of subdivision (b)(2) of section 1043 and the trial court was authorized to proceed with the trial in the defendant's absence. (Ruiz, at p.169.)

Here, like the defendants in Lewis and Ruiz, Howick was physically present in the courtroom and knowingly and voluntarily waived his right to attend the trial proceedings before jury selection started and throughout the trial. Under the common sense rule in Lewis and Ruiz, Howick was present when trial commenced, the exception in subdivision (b)(2) applied, and the court did not err in proceeding with the trial.

Howick argues that the Lewis rule is erroneous because it does not precisely demarcate the commencement of trial, since a defendant might be "physically present in the courtroom where the trial is to be held long before the jury [i]mpaneling begins." The amount of time a defendant might be in a courtroom, however, does not make the rule in Lewis imprecise. As applied here, when the jury impaneling was to begin, Howick was physically present in the courtroom; he then absented himself from the jury voir dire after the court had explained his right to attend and Howick expressly and unequivocally waived that right. Lewis and Ruiz are on point and preclude Howick's challenge.

The Molina rule was also rejected in People v. Granderson (1998) 67 Cal.App.4th 703 (Granderson). There, a non-custody defendant had voluntarily absented himself from the proceedings beginning on the second day of jury selection. (Id. at p. 706.) Granderson expressly rejected Molina's reliance on Evidence Code section 12 and jeopardy rules, and found that "[a]s a matter of constitutional law, common understanding, and common sense, 'trial' in a criminal case includes the critical stage of jury selection." (Granderson, at pp. 707-708, 710-712.) Thus, "in the ordinary sense, a criminal jury 'trial' has 'commenced' at least from the time that impaneling the jury begins, regardless of when jeopardy attaches." (Id. at p. 708.) Citing Lewis, Granderson found its interpretation to be consistent with the purpose of section 1043, subdivision (b)(2), which is "to prevent a defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself from the courtroom." (Granderson, at p. 708.) "To construe the phrase in any other way would defeat this purpose and would lead to absurd consequences," the court explained, because by the time the jury has been sworn, significant fiscal and human resources have already been deployed in setting a courtroom and assigning personnel for trial, summoning prospective jurors, subpoenaing witnesses, and the like. (Ibid.)

Howick goes so far as to argue that Granderson rejected the rule in Lewis (requiring the defendant to be physically present in the courtroom where the trial is to be held) and instead ruled that trial commences with jury selection for purposes of section 1043, subdivision (b)(2). Because Howick was not in the courtroom for jury selection, he contends Granderson supports his position that he was not present when trial commenced. He is plainly incorrect.

In the first place, Granderson did not reject the rule in Lewis; to the contrary, it rejected Molina and cited Lewis with approval. Furthermore, the court in Granderson did not hold that trial begins with jury selection, but that trial "includes" jury selection and begins "at least from the time that impaneling the jury begins." (Granderson, supra, 67 Cal.App.4th at pp. 707-708, italics added.) Since the defendant in Granderson had begun his absence after jury selection had begun, the court had no occasion to decide whether, as here, a defendant who began his absence when jury selection was about to begin was present for purposes of section 1043. Granderson is not inconsistent with our ruling today.

Because Howick was physically present in the courtroom when jury selection was about to begin, and he unequivocally and repeatedly told the judge that he would not appear in the courtroom for jury selection and the rest of trial, despite being advised of his right to be present and clearly stating his understanding of that right, his trial commenced in his presence for purposes of subdivision (b)(2) of section 1043. The court did not err in proceeding with the trial in his absence.

C. Howick's Challenge Is Precluded by Estoppel and Public Policy

The same result would be reached on another ground, under the reasoning in People v. Howze (2001) 85 Cal.App.4th 1380 (Howze).

In Howze, two days before the trial date, the defendant announced that he was not going to attend the trial. After the trial court informed him of his right to be present, the defendant asserted: "I'm not coming back, so do whatever you're gonna do. I'm not coming back." (Howze, supra, 85 Cal.App.4th at p. 1395.) On the day of trial, the defendant refused to come out of his jail cell. (Id. at p. 1396.) Trial proceeded, and he was convicted. On appeal, he sought reversal on the ground that he had not signed a written waiver of his right to be present at the commencement of trial.*fn4 (See § 977.) The court rejected his argument on the basis of waiver and estoppel.

1. Waiver

Section 1043 expressly provides that a defendant may waive his right to be present "in accordance with [s]section 977." (§ 1043, subd. (d); see Howze, supra, 85 Cal.App.4th at pp. 1394-1395.) Section 977 refers to a written waiver of the right to be present at certain portions of the trial. (§ 977, subd. (b)(1).) The court in Howze nonetheless found that the defendant's oral waiver of his presence at the commencement of trial sufficed, because the defendant failed to demonstrate prejudice in commencing the trial in his voluntary absence. (Howze, at p. 1395.)

Here, Howick orally waived his right to be present for jury selection and every subsequent part of the trial. Respondent argues that this oral waiver was sufficient, because Howick has not shown prejudice in starting or completing the trial without him. From his holding cell, Howick was able to listen to the proceedings and discussed them with his attorney, as confirmed by the court's statement to Howick: "I can tell by the content of what you said when you came out that you're paying attention to the proceedings. As counsel's indicated, you've given her some advice on the jury selection, this type of thing." Indeed, Howick does not assert that his absence from any part of the trial affected his opportunity to defend against the charge.

However, even if Howick's oral waiver suffices instead of a written waiver under section 977, it is not clear whether section 977 can be used to excuse Howick's attendance from the portions of the trial when evidence was taken (at issue here), as well as the commencement of trial (at issue in Howze). Section 977 allows a felony defendant to be absent from some parts of a trial with a written waiver, but requires the defendant to attend the portion of the trial "when evidence is taken before the trier of fact." (§ 977, subd. (b)(1); Gutierrez, supra, 29 Cal.4th at p. 1203 [unless excused under, e.g., § 1043, subd. (b)(2)].) It is unclear how an oral waiver could excuse Howick's absence from this portion of the trial under section 977, when even a written waiver under section 977 could not.

Nonetheless, Howze is instructive. Since Howick's oral waiver was sufficient to proceed with jury selection without him under Howze's interpretation of section 977, it becomes even more obvious that Howick's voluntary absence from jury selection should not preclude the court from proceeding with the rest of trial without him under section 1043, subdivision (b)(2).

2. Estoppel

Howze also held that the defendant was estopped from complaining on jurisdictional or constitutional grounds that the trial commenced in his absence. Howze observed: "We find that a defendant who refuses to come to court under such circumstances is estopped to assert that the trial improperly commenced in his absence. We note, moreover, that in the instant case defendant not only was advised that a failure to leave his cell would be considered a waiver of his right to be present, but (1) defendant responded to the admonition by affirmatively stating in open court that the court could do what it wanted to but he was not coming back for his trial, (2) no objection was made by counsel on jurisdiction grounds or constitutional grounds at the time trial commenced in defendant's absence, (3) defendant refused to come to court on the second day of trial after receiving another admonition at the jail, (4) defendant appeared on the third day of trial without making any objection and participated in the proceedings by personally making a motion to substitute counsel, (5) defendant admitted in court during the third day of trial that it was his choice not to come to court when trial commenced, and (6) defendant appeared on the fourth day of trial, without objecting to the commencement of the proceedings in his absence, for the purpose of testifying in his own defense, and used the opportunity to inform the jury that the People were trying to put him away for 140 years in a Three Strikes case. We conclude that in such circumstances public policy demands a defendant be estopped to assert that the court violated his right to be present or acted in excess of jurisdiction when it commenced trial in his absence. [Citations.]" (Howze, supra, 85 Cal.App.4th at p. 1396.)

For the same reasons, Howick is estopped from complaining that the trial commenced and proceeded in his absence, or that his conviction should be reversed due to his absence during jury selection. Given the shackles order (which he does not protest here), Howick refused to appear in the courtroom during jury selection and every other part of the trial, despite the court's repeated admonition of his right to attend the trial and his confirmation that he understood that right. Notwithstanding the court's efforts to assure Howick that the jury would not be able to see his shackles if he attended the trial, Howick refused to participate. Moreover, neither Howick nor his attorney objected under section 1043 that he was not present at the commencement of trial or that subdivision (b)(2) was inapplicable due to his refusal to attend jury selection. The trial went forward to verdict. Howick should not be permitted to refuse to attend his trial, knowing his right to do so, and only when convicted complain that the whole trial should be null and void because he refused to attend, particularly when he has not shown any prejudice arising from his absence. Under these circumstances, public policy demands that the estoppel doctrine be applied.

Howick contends the cases cited by Howze do not support its rulings. We disagree. Moreover, Howick does not provide any authority contrary to Howze. The law, the interests of justice, and common sense compel the conclusion that Howick cannot obtain reversal of his conviction merely because he began his knowing and voluntary refusal to attend the proceedings just before jury selection rather than a moment after. He has failed to establish reversible error.


The judgment is affirmed.

We concur. SIMONS, Acting P. J. BRUINIERS, J.

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