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Court of Appeal:
Missing One Day of Voir Dire Did Not Mandate New Trial
Opinion Says Finding That Inmate Voluntarily Waived Appearance Is Supported by Jail Records Indicating Transport Refusal, Despite Some Evidence That Missing Wristband to Blame
By Kimber Cooley, associate editor
Div. One of the First District Court of Appeal held Thursday that a criminal defendant’s constitutional right to be present at all critical stages of trial was not violated by his failure to appear on the second day of jury selection where jail records indicate that the inmate voluntarily refused transport to the court and so waived his appearance.
The defendant, Paul Hersom, failed to show up the following day as well, this time communicating to his attorney that a missing jail wristband indicating that he was to be transported to the court—which was confirmed to be in the pocket of pants remaining in the courtroom—was at fault.
On Dec. 29, 2022—the day of Hersom’s first non-appearance—San Francisco Superior Court Judge Harry M. Dorfman declined to continue jury selection, citing hesitation to send home prospective jurors and expressing concern that the defendant was playing games with the court. The voir dire process continued and jurors were admonished not to speculate as to the reason for Hersom’s absence.
When he failed to appear for a second time, Dorfman found that Hersom’s representations to his counsel were not credible in light of the jail records showing “refusal” as the reason he was not brought to court. The judge agreed to continue the case, at the request of both parties.
No further action was taken in the case until Jan. 4, 2023, when Hersom finally appeared. The defendant moved to dismiss based on his earlier absence.
Dorfman denied the motion, saying “[i]f you persuade me when all the evidence is in that I was wrong when I found that [Hersom] voluntarily absented himself from the second day of jury selection, then I’ll make a ruling consistent with my ultimate findings.”
A jury ultimately found Hersom guilty of felony vehicular burglary and being a felon in possession of tear gas, in violation of Penal Code §§459 and 22810(a), and the defendant was convicted of the charges.
Hersom moved for a new trial based on his one-day absence from the jury selection process.
Hearings on Absence
Hearings were held on the issue of Hersom’s absence, both before and after the jury verdict. At these proceedings, jail deputies were called as witnesses, but none could specifically recall whether Hersom asked for a wristband or indicated a desire to go to court.
However, Deputy Khae Saephan, who spoke with Hersom on both mornings in question, testified that inmates frequently lose wristbands and that the items are routinely replaced within “five minutes” of notifying the staff.
Hersom testified that, on the morning of Dec. 29, 2022, Saephan said to him “[h]ow the hell are you going to court without a wristband?” before calling in a request for a new one, which never came.
The defendant alleges he fell asleep waiting for the band and “the next thing [he] knew it was 12 o’clock in the afternoon.”
Dorfman denied the motion for a new trial, finding that his denial of the motion to continue was reasonable given the jail records indicating a refusal to come to court and the presence of prospective jurors in the courtroom.
Presiding Justice James M. Humes authored the opinion affirming the judgment of conviction. Justice Monique Langhorne Wilson and former Presiding Justice Peter J. Siggins (now retired), sitting by assignment, joined in the opinion.
Voluntary Absence
Humes acknowledged that “[t]he federal and state Constitutions protect a criminal defendant’s right to be present at trial” during critical stages such as the jury selection process but noted that case law establishes that a defendant’s voluntary absence operates as a waiver of this right.
He pointed out that the voluntary waiver principle is also codified in Penal Code §1043(b)(2), which provides that a defendant’s “absence…after the trial has commenced in their physical presence shall not prevent continuing the trial to, and including, the return of the verdict” if the defendant “is voluntarily absent.”
The jurist explained that jurisprudence in this area has left open the question of what standard of proof applies to challenged factual findings and opined:
“[A]lthough the parties here agree the clear and convincing standard of proof applies, we need not definitively resolve the issue. Even applying the less deferential standard of review flowing from that standard of proof, we conclude there is substantial evidence to support a finding that it was highly probable Hersom was voluntarily absent on December 29.”
Turning to the record, he wrote:
“Crucially, the sheriff’s department produced an incident report in which Deputy Saephan wrote on December 29 that Hersom ‘refused court and did not tell [the deputy] why.’ Deputy Saephan…also provided information about the jail’s standard practices tending to prove that an inmate who lost a wristband would immediately receive a new one. Indeed, the trial court could reasonably infer that Hersom did not actually try to obtain a replacement….”
Humes continued:
“Even though there was some evidence corroborating Hersom’s story, the court was entitled to rely on the significant other evidence he refused to come to court on December 29. Thus, we conclude there was substantial evidence from which the court could find it was highly probable Hersom was voluntarily absent that day.”
Denial of Continuance
The justice cited the 2016 California Supreme Court decision in People v. Espinoza as providing the framework for analyzing the validity of a denial of a motion to continue in this context. In the opinion, authored by former Chief Justice Tani G. Cantil-Sakauye (now retired), the court found that statements by an out-of-custody defendant indicating that he was trying to trigger a mistrial provided sufficient evidence to support a waiver finding.
Humes said:
“From Espinoza, we discern several factors bearing on our review of a trial court’s decision to proceed with trial in a defendant’s absence. First, the nature of the absence is significant, including whether the defendant has failed to appear for purposes of delay or because of other misconduct….Second,….a trial court must weigh the defendant’s right to be present against the waste of resources and inconvenience to jurors, witnesses, and other parties that may result from delaying the trial or granting a mistrial.”
Applying those factors, he concluded:
“Although there was no evidence of previous misconduct here approaching that in Espinoza, the court was reasonably concerned about the possibility that Hersom was attempting to manipulate the court and delay the proceedings. Because Hersom was in custody, the court had information that he had ‘refused,’ not just failed, to come to court. He also had not communicated with his trial counsel. Absent any solid indication of a valid excuse for the absence, the court could consider the possibility that Hersom had an improper motive for not appearing.
“We also discern no abuse of discretion in the trial court’s balancing of interests. The trial court was clearly hesitant to send home the prospective jurors, who are often summoned ‘at great cost and inconvenience’ for them.”
He added:
“[O]nly one day of jury selection was conducted outside the presence of Hersom, who was represented by counsel. The court hardly ‘summarily plung[ed] ahead’ with trial in [his] absence,’ as Hersom claims….To the contrary, the court tried to minimize the impact on his right to be present while respecting significant countervailing interests.”
The case is People v. Hersom, 2024 S.O.S. 3360.
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