Filed 7/11/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S224929
           v.                        )
                                     )                      Ct.App. 6 H039219
ZEFERINO ESPINOZA, JR.,              )
                                     )                     Santa Clara County
           Defendant and Appellant.  )                   Super. Ct. No. CC954850
____________________________________)

        The unusual circumstances of this case present a cautionary tale for
defendants who choose to represent themselves, for in the end, this defendant has
no one but himself to blame for any failure to present a defense.
        Defendant here waged a long campaign of manipulation and delay of his
trial proceedings after being held to answer on a number of felony and
misdemeanor charges. He was represented by seven different appointed counsel
over the course of more than two years, largely due to how difficult a client he
was. Over the same period, five different deputy district attorneys were assigned
to handle the case. The case was set for trial numerous times, but defendant made
repeated requests for continuances. Indeed, defendant‟s case trailed for so long
that there was concern over the continuing availability of witnesses.
        When defendant‟s jury trial finally commenced, defendant moved, during
jury selection, to dismiss his latest public defender and represent himself pursuant
to Faretta v. California (1975) 422 U.S. 806 (Faretta). In the course of providing



                                          1
defendant with the appropriate Faretta warnings, the court indicated it did not find
defendant had stated an appropriate ground for a one-day continuance in the event
his Faretta motion were to be granted. Defendant continued to request self-
representation and the trial court eventually granted that request. Defendant
appeared as his own counsel for the completion of voir dire and the examination of
the prosecution‟s first witness.
       Defendant failed, however, to appear in court for the next day of trial. The
court recessed for the entire day while efforts were made to locate defendant, who
was out of custody.
       When these efforts failed, the trial court found that defendant had
voluntarily absented himself from the trial proceedings. Placed in a dilemma by
defendant‟s disappearance, the court chose not to unilaterally revoke defendant‟s
status as his own counsel, and accordingly, did not reappoint counsel to represent
defendant. It proceeded with the trial in defendant‟s absence under the authority
of Penal Code section 1043, subdivision (b)(2), which permits a trial court to
continue with a noncapital felony trial in a defendant‟s absence if the trial was
commenced in the defendant‟s presence and the defendant is “voluntarily
absent.”1 The jury returned a mixed verdict, convicting defendant of a subset of
the charges. Defendant subsequently appeared before the court and moved for a
new trial. The trial court denied his motion and sentenced him to state prison.



1      Specifically, Penal Code section 1043, subdivision (b)(2), provides that
“[t]he 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 any of the following cases: [¶] . . . [¶] (2) Any prosecution for an
offense which is not punishable by death in which the defendant is voluntarily
absent.” Hereafter we will refer to this statute as section 1043(b)(2).




                                          2
       On appeal, the Court of Appeal concluded the trial court committed
structural error by proceeding with trial in the absence of defendant and without
the reappointment of defense counsel. It also concluded reversal was required
because, in the appellate court‟s view, the trial court had abused its discretion in
denying defendant‟s motion for a one-day continuance after it had granted
defendant‟s Faretta motion. We granted the People‟s petition for review.
       We conclude that the trial court did not err, under the specific
circumstances present in this case, in proceeding with the already-commenced trial
after defendant had expressly waived his constitutional right to counsel and
subsequently implicitly waived his constitutional right to be present. We also
conclude that the trial court did not abuse its discretion in denying defendant‟s
request for a one-day continuance, which the record reflects was made prior to the
grant of his Faretta motion. Accordingly, we reverse the judgment of the Court of
Appeal.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       On September 3, 2009, defendant Zeferino Espinoza got into a verbal
altercation with his roommate Augustine Gonzalez. During the argument,
defendant purportedly threatened Gonzalez‟s life and told him not to call the
police. Gonzalez called the police. When the police arrived, they obtained
defendant‟s consent to search his room and upon doing so, located two firearms,
ammunition, morphine, diazepam, and a small amount of marijuana. Defendant is
a convicted felon.
       Defendant was charged with a number of criminal violations relating to the
incident and items found. The public defender was appointed to represent him.
After being held to answer at a preliminary hearing, an information was filed in
December 2009. It charged defendant with two felony counts of being a felon in
possession of a firearm (Pen. Code, former § 12021, subd. (a)(1)); felony

                                          3
possession of a controlled substance (morphine) (Health & Saf. Code, § 11350,
subd. (a)); felony making of criminal threats (Pen. Code, § 422); misdemeanor
possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357,
subd. (b)); felony possession of ammunition (Pen. Code, former § 12316,
subd. (b)); felony dissuasion or attempted dissuasion of a witness (Pen. Code,
§ 136.1, subd. (c)(1)); and misdemeanor possession of a controlled substance
without a prescription (diazepam) (Health & Saf. Code, § 11375, subd. (b)(2)).
       As previously mentioned, seven different public defenders represented
defendant over the course of the next 27 months. They made more than 60 court
appearances on his behalf. During that period of time, a motion pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531 was filed and denied, a motion to
suppress was filed and denied, and two motions pursuant to People v. Marsden
(1970) 2 Cal.3d 118 (Marsden) were made and denied. The case was finally
assigned to a trial department on April 16, 2012 and the trial court began to
consider pretrial motions.
       On April 17, 2012, defendant made another Marsden motion to relieve his
then current public defender, Mark Camperi. Defendant requested that the court
appoint a conflict of interest attorney or allow him to represent himself. (Faretta,
supra, 422 U.S. 806.) The trial court asked defendant how much time he would
need if he were to represent himself. Defendant indicated that he would need
three weeks and he might then file some further motions. The trial court observed
that the case had been trailing for an extraordinarily long time, that defendant
could have requested to represent himself anytime in the previous few years, and
that the trial was set to begin. It noted that defendant was not prepared to
represent himself with a minimal continuance and stated that it was not inclined to
continue the case for a further two to three weeks, which it suspected would be
more likely at least another month. The court suggested that defendant was

                                          4
asserting his rights under Faretta at that time because he was attempting to
manipulate the court. The trial court denied defendant‟s Faretta motion.
       As to defendant‟s Marsden motion defendant insisted that he wanted “to
fire” Camperi. He stated he was “[n]ot going to trial with this attorney” because
Camperi had a conflict of interest, failed to communicate with him, had no interest
in the case, had threatened him, and had failed to investigate the witnesses
defendant suggested. Camperi denied all of defendant‟s assertions. Camperi
described his investigative efforts and attempts to discuss the case with defendant,
who he claimed repeatedly interrupted and talked over him. The trial court found
no basis to relieve Camperi and denied defendant‟s Marsden motion.
       The next day, Camperi informed the trial court that defendant desired a
two-week continuance in order to represent himself and that defendant was
adamant that he wanted to fire Camperi. The court stated that its prior orders
would remain in effect because the court did not believe it would be possible for
the case to be ready in two weeks if defendant were to represent himself. The
court observed that “there‟s been five D.A.‟s assigned to go to jury trial. There
have been seven public defenders. This case keeps rattling around the courthouse,
for lack of a better word. And it‟s not for any lack of effort on the part of the D.A.
or the public defender.” The court proceeded to discuss various pretrial matters,
including an estimated schedule for the jury trial. With respect to that schedule,
the court stated it anticipated, at most, a two-week trial with jury selection set to
begin on April 23, 2012.
       On the day jury selection was set to begin, defendant again moved to
relieve Camperi, reasserting a failure to communicate, a lack of interest in the
case, and a failure to investigate witnesses. Defendant complained that his
discovery packet was incomplete and asserted there was a “major conspiracy” “all
the way from the police department to confidential witnesses” and that the asserted

                                           5
conspiracy included Camperi. Defendant said that he had evidence of a romantic
relationship between the investigating officer and the victim Gonzalez. Camperi
responded and denied defendant‟s claims. The trial court found defendant‟s
contentions baseless and contrary to the record. It stated that defendant‟s various
requests appeared to be part of a delay tactic. The court questioned the credibility
of defendant‟s additional assertion that he was in the process of retaining private
counsel. And, at one point, it noted that defendant‟s case had been trailing for so
long that one of the expected defense witnesses was dying of cancer and might not
be able to testify if there were a continuance. Defendant continued to complain
about Camperi. The trial court stated that defendant‟s complaints did not “line up
with the evidence before the court, or in some cases reality.” The court denied
defendant‟s Marsden motion, suggesting that defendant would be unhappy with
any public defender. It also denied his further Faretta motion, finding that it was
brought for the purposes of delay. The trial court proceeded to consideration of
several pretrial matters and then began jury selection.
       The next morning, April 24, 2012, defendant again moved to dismiss
Camperi under Marsden and to represent himself under Faretta. The court found
that defendant, in stating the grounds for his request, was lying to justify his goal
of getting rid of Camperi and failed to establish any basis for relieving counsel. It
denied the Marsden motion.
       Defendant once again asked if he could “go pro per.” The trial court
indicated that if defendant was ready to proceed to trial without counsel, he could
do so. Defendant responded that he would “need co-counsel” and explained that it
would take him two weeks to be ready for trial. The court denied the request for
cocounsel and said the fact that defendant would need such a continuance if he
were granted self-representation was the reason why he was not being permitted to
represent himself. Moments later, the court told defendant that it would give him

                                          6
a fair trial and reiterated that defendant could represent himself, but only if he was
ready to proceed with the already commenced trial. The court told defendant that
his “two options [were] you either represent yourself or you have Mr. Camperi
represent you, because I can‟t continue this case.” Defendant stated that he would
like to represent himself, at which point the court asked that defendant be given a
“Faretta form” because it wanted him to understand his rights before Camperi left.
       Defendant was given the form and admonished by the court as follows:
“Okay. Mr. Espinoza, I want to make it clear if you represent yourself you are not
going to get any special treatment. You are not going to get any continuances
unless they are reasonable requests, which given the time frame we‟ve given to the
jurors we need to move forward with this case. I‟m not going to be extending it
beyond that time limit I gave to the jurors. You need to get your own witnesses
here without anybody‟s assistance. If you can‟t find them or locate them, if they
don‟t agree to come in, if they‟re late because their bus didn‟t pick them up we‟re
going without them. So I want to make sure you understand that. [¶] When you
represent yourself you do it on your own. You don‟t get any assistance. You are
not going to get co-counsel. You don‟t get any special favors. You are expected
to be treated just as the D.A. is treated. You don‟t get any breaks because you
don‟t know the law or how to proceed in a trial. You don‟t get to file an appeal
saying that you had ineffective assistance of counsel because this is your choice.”
The court gave defendant some time to read over the Faretta form and reflect on
his decision.
       Approximately 40 minutes later, defendant indicated that he wanted to
represent himself and had filled out the form “to the best of [his] ability.” The
court responded: “You either understood the form or you didn‟t. Don‟t say to the
best of my ability. I don‟t play games.” Defendant asked for additional time to
review the form, which the court granted. Defendant asked the court whether, if

                                          7
he proceeded to represent himself, it would grant him a continuance to the next
day for him to get copies of whatever materials were in the possession of the
public defender. The court told defendant “no,” indicating that it believed
defendant already had a copy of the file and that he was not entitled to any internal
memoranda of the public defender‟s office detailing how difficult a client he was.
Camperi assured the court that he would confirm that defendant had all of the
discovery in the case and would immediately provide anything that had been
missed. Defendant asked the court several additional questions regarding the
Faretta form. Once the court answered them, defendant indicated he had read the
form and fully understood it. The form described defendant‟s constitutional trial
rights, including not only his right to be represented by a lawyer, but his right to
confront witnesses and use the process of the court to subpoena witnesses and
records needed for his defense. The court confirmed that defendant specifically
understood that “you may not be able to change your mind, or if you do change
your mind the court doesn‟t have to accept your change of mind[.] Mr. Camperi is
not going to be coming back. You are not going to get co-counsel, side counsel,
assisted counsel or any kind of counsel.” The court asked defendant whether he
was still willing to go to trial representing himself and defendant replied in the
affirmative.
       Noticing that defendant had failed to fully complete the Faretta form, the
trial court went back to explain several matters. It also made a record of its
observations of defendant, stating: “At times Mr. Espinoza has pretended to not
know what‟s going on. And that he‟s unfamiliar with the case, but it‟s clear from
his discussions with the court and counsel that he knows more about the case than
anybody else. [¶] He‟s been working on this case since September 3, 2009. He
has been controlling the direction of the case by having the public defender‟s
office do many things which they thought in their professional legal opinions

                                          8
[were] unnecessary, but they did them nevertheless. [¶] Defendant has been
controlling the discovery associated with this case. The court believes that the
defendant has been working the system as part of a delay tactic and/or his inability
to accept reasonable tactical decisions of his various trial attorneys. And that he is
not put into jeopardy by representing himself, because he is prepared to handle this
case more so than his attorneys, according to Mr. Espinoza. And under the law
even if he is not going to do as good a job as his attorney would have done, that is
Mr. Espinoza‟s choice and he does so willingly.” The court reviewed defendant‟s
completed Faretta form and confirmed that defendant had personally filled it out
and that he had no further questions. It then granted defendant‟s motion for self-
representation.
       Trial proceeded on April 24, 2012, with the completion of voir dire and the
swearing of the jury. The prosecutor gave an opening statement. Defendant
declined to give one. The prosecution called Gonzalez as its first witness.
Defendant made two objections to the prosecutor‟s direct examination and
declined cross-examination. At the conclusion of Gonzalez‟s testimony, the court
dismissed the jury for the day and directed defendant to appear in court at
8:45 a.m. the next day.
       Defendant failed to appear in court when the trial resumed the following
morning. The court and prosecutor attempted, without success, to contact
defendant. At 10:00 a.m., the court dismissed the jury until the next morning and
ordered a body attachment for defendant.
       On the following morning, April 26, 2012, the court reconvened outside the
presence of the jurors, noting that defendant had still failed to appear and that no
one had heard from him or located him despite a thorough search. The court made
“a finding under Penal Code section 1043 that the defendant ha[d] voluntarily
absented himself from this trial.” It found that “he knowingly absented himself”

                                          9
and “that he abandoned this trial purposefully and that the purpose for which he
chose to not come to trial was evasion of the trial or avoiding penalty for the
alleged crimes that he allegedly committed or another delay tactic with the
defendant perhaps believing that if he didn‟t show up to trial that the court would
terminate this jury trial, send the jurors home and then when he comes in in a
month he would try to delay the trial again for another three years.” The court
explained its reasons for finding defendant knowingly and voluntarily absent,
noting the conversations it had in defendant‟s presence about the schedule for the
trial, the anticipated availability and timing for the testimony of witnesses, and
defendant‟s obligation to be in court every day at 8:45 a.m. It observed that
defendant had been given a copy of the rules of court informing him of the
requirement that he be in court every day by 8:45 a.m. The court detailed the
substantial efforts of court personnel and the prosecutor to locate defendant after
he first failed to appear the previous morning.
       The court informed the jury when it returned that the trial would be
proceeding without defendant, as allowed by the law. The trial continued without
defendant or defense counsel, although the court indicated for the record, outside
the presence of the jury, that in conducting the proceedings it considered the
arguments that likely would have been made by defendant or defense counsel if
they had been present. At the conclusion of the trial, after two days of
proceedings without defendant, the court instructed the jury that it should not
consider defendant‟s absence during any portion of the trial “for any purpose in
your deliberations.” The prosecutor told the jury during closing argument to heed
the court‟s instruction, which was then repeated before the jury began its
deliberations. The court also expressly told the jury not to favor either defendant
or the prosecution because of defendant‟s absence.



                                          10
       The jury returned a mixed verdict, finding defendant guilty of illegally
possessing the charged drugs, firearms, and ammunition, but acquitting defendant
of the offenses of making criminal threats and attempting to dissuade a witness
through the threat of force. The court set sentencing for May 25, 2012. It directed
the prosecutor to attempt to locate defendant and give him notice of the date set.
If defendant was found, the court indicated that he should be remanded into
custody.
       Defendant was apparently not located and remanded into custody.
Defendant simply voluntarily appeared in court on May 25, 2012, represented by
retained counsel. The court granted defendant‟s request for a continuance of
sentencing for eight weeks and remanded defendant into custody. The court
ordered the probation department to interview defendant in jail. The case was
subsequently continued again to allow time for retained counsel to file a motion
for new trial. However, in October 2012, defendant dismissed his retained counsel
and requested an alternate public defender. The trial court referred the matter to
the alternate public defender for assessment. The alternate public defender
accepted representation and moved for a further continuance of sentencing, which
the trial court granted.
       According to the presentence probation report, submitted in connection
with defendant‟s prospective sentencing, defendant informed the probation officer
that he “stopped attending the court proceedings because he was advised by an
attorney to stop going so that there would be cause for a mistrial.” Defendant said
that he did not understand “how the proceedings continued without [him] being
present in court and he would like this case to be considered a mistrial.”
       Defendant moved for a new trial, arguing that the court erred in denying his
first and second Faretta motions, erred in granting his third Faretta motion
without a continuance, erred in denying defendant‟s Marsden motions, and erred

                                         11
in proceeding with the trial in defendant‟s absence. The trial court denied the
motion, disagreeing with defendant‟s view of the facts and citing defendant‟s
history of “delay tactics, unreasonable expectations, dishonest statements to the
court, and manipulation of the process.” The trial court sentenced defendant to
prison for two years and eight months.
       Defendant appealed. He argued, among other things, that the trial court
erred by trying him in absentia without appointing counsel. He contended, after
the reviewing court requested supplemental briefing on the matter, that the trial
court erred by denying his motion for a one-day continuance.
       The Court of Appeal reversed on both grounds, concluding that the trial
court erred by proceeding with the trial in the absence of defendant and without
defense counsel because defendant did not absent himself on the record and
nothing in the record showed he knew or understood that the proceedings would
continue without him. As a result, the appellate court found the record did not
support any inference that defendant made a knowing waiver of his fundamental
trial rights to confront witnesses against him, to present a defense, to present
argument, and to assert his privilege against self-incrimination. The Court of
Appeal suggested three measures that the trial court could have taken to avoid a
mistrial in the event defendant failed to appear after his Faretta motion was
granted: (1) it could have, after granting defendant the right to represent himself,
appointed Camperi as standby counsel solely to observe the proceedings, (2) it
could have later reappointed Camperi when defendant failed to appear, even if it
had not appointed him earlier as standby counsel, or (3) it could have warned
defendant during the Faretta warnings process that the trial would continue
without him in the event he voluntarily absented himself, and that doing so would
result in the waiver of his trial rights. The Court of Appeal also concluded



                                          12
reversal was required because the trial court abused its discretion in denying a
one-day continuance after it granted defendant‟s Faretta motion.
                                  II. DISCUSSION

       A. Proceeding with Trial in Absentia
       “A criminal defendant‟s right to be present at trial is protected under both
the federal and state Constitutions. (U.S. Const., 6th & 14th Amends.; United
States v. Gagnon (1985) 470 U.S. 522, 526; Cal. Const., art. I, § 15; People v.
Waidla [(2000)] 22 Cal.4th [690,] 741.)” (People v. Gutierrez (2003) 29 Cal.4th
1196, 1202 (Gutierrez).)
       But the right is not an absolute one. (Gutierrez, supra, 29 Cal.4th at
p. 1202.) It may be expressly or impliedly waived. (People v. Concepcion (2008)
45 Cal.4th 77, 82 (Concepcion).) As relevant here, the high court has stated that
“where the offense is not capital and the accused is not in custody, the prevailing
rule has been, that if, after the trial has begun in his presence, he voluntarily
absents himself, this does not nullify what has been done or prevent the
completion of the trial, but, on the contrary, operates as a waiver of his right to be
present and leaves the court free to proceed with the trial in like manner and with
like effect as if he were present.” (Diaz v. United States (1912) 223 U.S. 442, 455,
italics added.) Section 1043(b)(2) has adopted this majority rule as state law.
(Gutierrez, at p. 1204.) Section 1043(b)(2) is similar to its federal counterpart,
rule 43 of the Federal Rules of Criminal Procedure (18 U.S.C.), which, we note,
the high court has found to be constitutional. (Taylor v. United States (1973) 414
U.S. 17, 18 (Taylor); Gutierrez, at p. 1204.) “In determining whether a defendant
is absent voluntarily, a court must look at the „totality of the facts.‟ ” (Gutierrez,
at p. 1205.) The trial court here found that defendant voluntarily failed to appear




                                          13
for trial and using the authority of section 1043(b)(2) it proceeded with the already
commenced trial.
       People v. Parento (1991) 235 Cal.App.3d 1378 (Parento) considered a trial
court‟s decision to proceed with trial in absentia under circumstances quite similar
to those before us. After electing to represent himself, defendant Parento sought a
continuance on the day of trial, which request was denied. He then requested
appointment of counsel, which request was also denied. He then told the court:
“ „Just do it without me then. That‟s what you do. . . . You just write me a letter
when it‟s over. That‟s what you do.‟ ” (Id. at p. 1380, fn. 2.) Parento “refused to
participate further in the proceedings, and thus was absent from the trial.” (Id. at
p. 1380.) The Court of Appeal held that the trial court did not err in proceeding
with trial in Parento‟s absence. It found Parento had voluntarily waived his right
to be present at trial as well as his right to counsel. In effect, he had chosen to
present no defense by physically absenting himself. (Id. at p. 1381.)
       The Court of Appeal in the present case distinguished Parento, however, on
the basis that the defendant there had affirmatively absented himself on the record
with the knowledge that the trial was proceeding without him. It found nothing in
the record here showed that defendant knew the proceedings would continue
without him. It pointed out the trial court‟s comment that defendant may have
believed “that if he didn‟t show up to trial that the court would terminate this jury
trial” and defendant‟s later statement to his probation officer that he had indeed
intended to cause a mistrial. Under these circumstances, the Court of Appeal
reasoned, defendant “could not have known he was waiving his fundamental trial
rights — including his right to confront the prosecution‟s witnesses, his right to
present a defense, and his right to present argument.”
       With respect to this reasoning, our high court‟s decision in Taylor, supra,
414 U.S. 17 is instructive. In Taylor, the defendant, represented by counsel, was

                                          14
present for the morning of the first day of his trial, but thereafter failed to appear.
The trial court denied a motion for mistrial and proceeded with the trial to a
verdict in reliance on rule 43 of the Federal Rules of Criminal Procedure (18
U.S.C.).2 The high court affirmed, expressly rejecting the argument, echoed in the
Court of Appeal‟s reasoning in this case, that a defendant‟s voluntary absence
from trial is not an effective waiver of the right to be present at trial unless it is
demonstrated on the record that the defendant “knew or had been expressly
warned by the trial court not only that he had a right to be present but also that the
trial would continue in his absence and thereby effectively foreclose his right to
testify and to confront personally the witnesses against him.” (Taylor, at p. 19.)
The high court approved Judge Fahy‟s statement in Cureton v. United States (D.C.
Cir. 1968) 396 F.2d 671, 676, of “the controlling rule” that “ „[i]f a defendant at
liberty remains away during his trial the court may proceed provided it is clearly
established that his absence is voluntary. He must be aware of the processes
taking place, of his right and of his obligation to be present, and he must have no
sound reason for remaining away.‟ ” (Taylor, at p. 19, fn. 3; see People v.
Connolly (1973) 36 Cal.App.3d 379, 384.) Under such circumstances, the high
court stated that “ „there can be no doubt whatever that the government
prerogative to proceed with a trial may not be defeated by conduct of the accused
that prevents the trial from going forward.‟ ” (Taylor, at p. 20.)




2       Because the defendant in Taylor continued to be represented by defense
counsel after he failed to appear, we recognize that Taylor is distinguishable from
this case. Here, defendant knowingly and voluntarily waived his right to counsel
pursuant to Faretta. Defense counsel was relieved and defendant proceeded to
represent himself at the first portion of his trial. He then absconded midtrial.




                                            15
        The trial court in this case determined that defendant knew his trial had
commenced, that it was scheduled to continue the next day, and that he had both a
right and an obligation to be present in court in the morning for the trial to
proceed. In support, it expressly noted the conversations it had in defendant‟s
presence about the schedule for the trial, the anticipated availability and timing for
the testimony of witnesses, and defendant‟s obligation to be in court every day at
8:45 a.m. It observed that defendant had been given a copy of the rules of court
informing him of the requirement that he be in court every day by 8:45 a.m. The
trial court also found that defendant‟s purpose in failing to appear was delay,
evasion of the trial, and avoidance of punishment. Thus, the court made the
necessary factual findings for an effective waiver of defendant‟s right to be present
at trial.
        The role of an appellate court in reviewing a finding of voluntary absence is
a limited one. Review is restricted to determining whether the finding is supported
by substantial evidence. (Concepcion, supra, 45 Cal.4th at p. 84.) Here the
record, which we have described, supports the trial court‟s view that defendant
was “ „aware of the processes taking place,‟ ” that he knew “ „his right and of his
obligation to be present,‟ ” and that he had “ „no sound reason for remaining
away.‟ ” (Taylor, supra, 414 U.S. at p. 19, fn. 3.) As such, defendant implicitly
waived his right to be present. (Id. at p. 20.) No more was constitutionally
required. (Smith v. Mann (2d Cir. 1999) 173 F.3d 73, 76; Clark v. Scott (5th Cir.
1995) 70 F.3d 386, 389-390.)
        But in fact the record here demonstrates more. Defendant was present and
represented himself during the selection and empaneling of the jury. He was
present and represented himself when opening arguments were given. He declined
to present a defense opening statement. He was present and represented himself
during the examination of the prosecution‟s first witness, the alleged victim of two

                                          16
of defendant‟s charged offenses. Defendant raised two objections during direct
examination and declined cross-examination. Under these circumstances, it is
“wholly incredible” that defendant “entertained any doubts about his right to be
present at every stage of his trial.” (Taylor, supra, 414 U.S. at p. 20.) Equally
clear, defendant had to have been aware of his trial rights of confrontation and
presentation of a defense and argument. The only uncertainty here is whether he
was also actually aware that the trial could continue if he chose to absent himself.3
       Defendant‟s actual knowledge is, however, immaterial. By invoking his
Faretta right, defendant gave up the right to argue that “the quality of his own
defense amounted to a denial of „effective assistance of counsel.‟ ” (Faretta,
supra, 422 U.S. at p. 834, fn. 46.) When defendant voluntarily chose self-
representation, he became charged with the knowledge of the authority of the trial
court to continue with his trial if he voluntarily chose not to appear, pursuant to
section 1043(b)(2) and Parento, supra, 235 Cal.App.3d at pages 1381-1382. A


3        The trial court stated that “the purpose for which [defendant] chose not to
come to trial was evasion of the trial or avoiding penalty for the alleged crimes
that he allegedly committed or another delay tactic with defendant perhaps
believing that if he didn‟t show up to trial that the court would terminate this jury
trial, send the jurors home and then when he comes in in a month he would try to
delay the trial again for another three years.” (Italics added.) But with respect to
the latter possibility, we note the record also reflects defendant repeatedly lied to
support his own aims. Thus, defendant could have lied to the probation officer
about his belief that a mistrial would be declared if he failed to appear in order to
support his contemplated motion for a new trial, in line with the trial court‟s
previous speculation. And, from the perspective of the trial court at the time of
defendant‟s failure to appear, it was also reasonable to believe defendant had
chosen to abandon his trial as a tactical decision to present no defense. After all,
defendant had made minimal efforts at a substantive defense up to the point in
time when he absented himself. As we explain, the trial court did not need to
resolve this factual question under the circumstances.




                                          17
defendant cannot choose to represent himself, decide upon an ill-advised strategy
that results in his inability to present a defense or to cross-examine witnesses, and
then plead ignorance of the law or the consequences of his actions as a ground for
reversal of his conviction. (Cf. People v. Blair (2005) 36 Cal.4th 686, 734 [a self-
represented defendant “cannot premise a claim of ineffective assistance of counsel
on his own shortcomings”]; U.S. v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674
[“[A] defendant cannot claim „ineffective assistance of counsel‟ flowing from his
failure to follow the rules of procedure or from his misinterpretation of the
substantive law. If he chooses to defend himself, he must be content with the
quality of that defense.”].)
       Of course, our conclusion that defendant‟s voluntary absence operated to
waive his constitutional right to be present at trial and permitted continuation of
the trial, does not end our inquiry regarding the propriety of the trial court‟s
decision to proceed with the trial in the absence of defendant and defense counsel.
Section 1043(b)(2) states that a defendant‟s voluntary absence “shall not prevent”
the trial from continuing, but it does not require it. Accordingly, the decision
whether to continue with a trial in absentia under the statute or to declare a mistrial
rests within the discretion of the trial court. (Cf. Cureton v. United States, supra,
396 F.2d at p. 675 [similar language in federal rule provides courts with latitude in
deciding whether to proceed].) We conclude that defendant has failed to show any
abuse of discretion by the trial court here.
       What the trial court knew at the time defendant failed to appear for trial was
that defendant had vigorously and repetitively contended that he did not want to
proceed to trial with Camperi as his counsel. He distrusted Camperi, who he
claimed failed to communicate with him, lacked interest in his case, and was part
of the “conspiracy” against him. The court had questioned defendant to make sure
that he specifically understood that if he chose to represent himself, he would not

                                          18
“get co-counsel, side counsel, assisted counsel or any kind of counsel.” And
defendant had expressed his willingness and desire to represent himself under such
conditions. Defendant had been provided with the appropriate Faretta warnings
and had knowingly and voluntarily waived his right to counsel and undertaken to
represent himself. A jury was empaneled and the evidentiary portion of the trial
was begun. Of course, the trial court was also aware that defendant participated
only minimally in those trial proceedings; declining both the opportunity for
opening statement and examination of the prosecution‟s first witness. Defendant
then disappeared without notice or explanation.
       Given defendant‟s minimal efforts in offering a substantive defense when
he was acting pro se and up to the point in time when he absented himself,
defendant‟s failure to appear for the next day of trial, as a circumstance by itself,
did not constitute a clear abandonment of his constitutional right of self-
representation. As the Eleventh Circuit Court of Appeals stated, even under
circumstances where the defendant had actively advocated his defense, “[w]ith no
other clues, his flight alone does not indicate unambiguously a desire to revoke his
valid Sixth Amendment waiver and reinstate [prior counsel] as counsel of record.”
(U.S. v. Stanley (11th Cir. 2014) 739 F.3d 633, 650.)
       Defendant‟s failure to appear, thus, placed the trial court in a difficult
dilemma. The Court of Appeal‟s first suggested alternative was for the trial court
to appoint Camperi as standby counsel when it granted defendant‟s Faretta
motion. But, given defendant‟s expressed antipathy to Camperi, the trial court
reasonably could have concluded that doing so would likely incense defendant and
result in his further efforts to delay or avoid continuing with the trial. And
although a trial court may properly revoke a defendant‟s Faretta waiver when the




                                          19
defendant engages in “serious and obstructionist misconduct,” (Faretta, supra,
422 U.S. at p. 834, fn. 6; accord, People v. Clark (1992) 3 Cal.4th 41, 113-116),4
the trial court here faced significant countervailing considerations when defendant
disappeared. Defendant had a long history of lack of cooperation and
dissatisfaction with appointed counsel, had adamantly objected to Camperi, had
executed a valid Faretta waiver when faced with continued representation by
appointed counsel, and had provided virtually no substantive defense prior to his
disappearance. Under these circumstances, we see no basis for concluding the
trial court was required to revoke defendant‟s self-representation rights and
reappoint Camperi (or any other counsel, had one been available and ready to
proceed on behalf of defendant), as suggested by the Court of Appeal as a second
alternative.5 As the high court explained in Faretta itself, “[t]o thrust counsel
upon the accused, against his considered wish, . . . violates the logic of the [Sixth]
Amendment.” (Faretta, supra, 422 U.S. at p. 820.) “An unwanted counsel

4        “[T]he right of self-representation is not absolute.” (Indiana v. Edwards
(2008) 554 U.S. 164, 171.) A trial judge may terminate self-representation”
[w]henever „deliberate dilatory or obstructive behavior‟ threatens to subvert „the
core concept of a trial‟ [citation] or to compromise the court‟s ability to conduct a
fair trial [citation].” (People v. Carson (2005) 35 Cal.4th 1, 10.) “Each case must
be evaluated in its own context, on its own facts, in light of” relevant factors.
(Ibid.) But, contrary to defendant‟s argument, the record does not reflect that the
trial court here implicitly revoked defendant‟s pro se status on such ground. (See
post, pp. 23-24.) We have no occasion, therefore, to decide whether the trial court
could have done so under the circumstances of this case. (Cf. U.S. v. Stanley,
supra, 739 F.3d at p. 650.)
5      As we have discussed, and contrary to the third suggestion of the Court of
Appeal, the trial court had no responsibility to anticipate defendant‟s subsequent
absence and expressly warn defendant at the time of considering his Faretta
motion that if he failed to appear, his trial would continue in his absence, thereby
effectively foreclosing his trial rights. (See Taylor, supra, 414 U.S. at p. 19.)




                                          20
„represents‟ the defendant only through a tenuous and unacceptable legal fiction.
Unless the accused has acquiesced in such representation, the defense presented is
not the defense guaranteed him by the Constitution, for, in a very real sense, it is
not his defense.” (Id. at p. 821.) “[T]he core of the Faretta right” is that “the pro
se defendant is entitled to preserve actual control over the case he chooses to
present to the jury.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 178.) That right
of control includes “the option of conducting his defense by nonparticipation.”
(People v. McKenzie (1983) 34 Cal.3d 616, 628.)
       Moreover, the trial court reasonably found that defendant‟s failure to appear
was a continuation of his efforts to manipulate the court and delay his criminal
trial. Defendant had worked his way through seven defense counsel over the
course of nearly two and a half years before, at the last moment, deciding to
proceed pro se and then, the next day, failing to appear. The court was not
required to reward defendant‟s voluntary choice to absent himself by granting a
mistrial. (See People v. Brownlee (1977) 74 Cal.App.3d 921, 932 [“We are aware
of no principle of law, constitutional or otherwise, which entitles a defendant to a
mistrial for his own misconduct.”].) As well stated more than a century ago, “ „[i]t
does not seem to us to be consonant with the dictates of common sense that an
accused person, being at large upon bail, should be at liberty, whenever he
pleased, to withdraw himself from the courts of his country and to break up a trial
already commenced. The practical result of such a proposition, if allowed to be
law, would be to prevent any trial whatever until the accused person himself
should be pleased to permit it.‟ ” (Diaz v. United States, supra, 223 U.S. at p. 457,
quoting Falk v. United States (1899) 15 App. D.C. 446, 454; accord, Concepcion,
supra, 45 Cal.4th at p. 82.)
       In deciding whether to proceed with the trial, the trial court was also
entitled to consider the stage of the trial proceedings. (Concepcion, supra, 45

                                          21
Cal.4th at p. 83; see U.S. v. Wallingford (8th Cir. 1996) 82 F.3d 278, 280.)
Specifically, a jury had already been selected and sworn. It was empaneled with
the understanding that trial was anticipated to last at most two weeks. The trial had
begun and the prosecution‟s first witness had testified. The prosecution was ready
to proceed when defendant disappeared. (Concepcion, supra, at pp. 83-84
[detailing the possible disruptions entailed by trial delay].) The trial court did not
rush to proceed with trial, but recessed for a day while multiple attempts were
made to locate defendant. (See Gutierrez, supra, 29 Cal.4th at p. 1209
[recognizing that the trial court did not “ „summarily plung[e] ahead‟ with trial,”
but “took reasonable steps to determine that defendant was „voluntarily absent‟
before continuing with trial in his absence”].) Delaying the trial further would
have posed a risk of hardship to the jurors, inconvenience to the witnesses, and
disruption to orderly court processes. To declare a mistrial and reconvene a new
jury, moreover, would have been a waste of judicial resources with no certainty of
a different result, given defendant‟s history of delay tactics.
       It is important, of course, to also recognize that courts have an
“independent interest” in ensuring that criminal trials are fair and accurate.
(Wheat v. United States (1988) 486 U.S. 153, 160.) That interest is clearly
implicated when continuing an ongoing trial in a defendant‟s absence will result in
an empty defense table. (See Thomas v. Carroll (3d Cir. 2009) 581 F.3d 118,
126.) But it appears that the trial court here appropriately considered this issue.
Faced with defendant‟s voluntary absence after he had strongly asserted and
obtained the right to proceed with his own defense and without counsel, the court
informed the jury when it returned that the trial would be proceeding without
defendant as permitted by the law. At the conclusion of the trial, the court
instructed the jury that it should not consider defendant‟s absence during any
portion of the trial “for any purpose in your deliberations.” The court expressly

                                          22
told the jury not to favor either defendant or the prosecution because of
defendant‟s absence. Not only do we presume the jury followed the court‟s
instructions, we note that the jury returned a mixed verdict in the case.
       Viewing these circumstances as a whole, we conclude the trial court acted
within its discretion in deciding to proceed with the trial pursuant to section
1043(b)(2).
       Not actually contesting these conclusions, defendant now makes a new
claim asserted for the first time before this court. He argues that the trial court
implicitly revoked his pro se status for misconduct, that is, based on his failure to
appear for trial constituting a form of deliberate misconduct. (E.g., People v.
Carson, supra, 35 Cal.4th at p. 6; People v. Clark (1992) 3 Cal.4th 41, 115-116,
citing Faretta, supra, 422 U.S. at p. 835, fn. 46). Defendant then claims that once
the court implicitly terminated his self-representation, it erred by failing to
reappoint counsel (People v. Soukomlane (2008) 162 Cal.App.4th 214, 234-235;
People v. Carroll (1983) 140 Cal.App.3d 135, 141-143) and by, instead,
“undertaking [defendant‟s] representation itself.” Further, defendant asserts that
he was mentally ill and did not meet the standard of competence for self-
representation set by People v. Johnson (2010) 53 Cal.4th 519, 530 (Johnson).
Consequently, he argues, the trial court erred by failing to conduct an inquiry into
his ability to represent himself, by granting his request for self-representation, and
by failing to reappoint counsel after it implicitly terminated his pro se status.
       By failing to raise these claims in his new trial motion and on appeal,
defendant forfeited them. Indeed, they appear to be inconsistent with both the
legal and factual positions defendant advanced below. The claims are also not
properly before us because defendant failed to request that they be included in our
review in his answer to the People‟s petition for review. Moreover, they are
unsupported by the record and are, therefore, meritless.

                                          23
       That is, regardless of whether a voluntary failure to appear may provide
sufficient cause for a trial court to terminate a defendant‟s pro se status (ante, fn.
5), the record is clear that the trial court did not do so here, implicitly or otherwise.
The comments made by the trial court to which defendant refers in support of his
claim that the court “constructively” revoked his right of self-representation, when
read in context, simply reflect that the court sought to protect defendant‟s right to
a fair trial by conducting the trial proceedings in a manner consistent with the prior
requests of Camperi when he still represented defendant and in light of the likely
positions and argument that would be made by effective defense counsel. Other
comments essentially indicate the trial court‟s internal deliberative process in
ruling on evidentiary and instructional issues. We view the court‟s comment that
it “basically sat in defense counsel‟s seat” as purely a figurative means of
expressing its position that it had conducted the trial in a manner that protected
defendant‟s right to a fair trial. Thus, the underlying factual premise of
defendant‟s argument lacks support in the record.
       Nor does the record support defendant‟s new position that the court erred
under our law permitting the denial of self-representation for defendants who are
severely mentally ill. (Johnson, supra, 53 Cal.4th at p. 530 [self-representation
may be denied a defendant who “suffers from a severe mental illness to the point
where he or she cannot carry out the basic tasks needed to present the defense
without the help of counsel.”].) “A trial court need not routinely inquire into the
mental competence of a defendant seeking self-representation. It needs to do so
only if it is considering denying self-representation due to doubts about the
defendant‟s mental competence.” (Ibid.) There is no indication the trial court had
such doubts here. To the contrary, the trial court observed for the record that: “At
times Mr. Espinoza has pretended to not know what‟s going on. And that he‟s
unfamiliar with the case, but it‟s clear from his discussions with the court and

                                           24
counsel that he knows more about the case than anybody else. [¶] He‟s been
controlling the direction of the case[.] [¶] He has been controlling the discovery
associated with this case.” Elsewhere, the trial court told defendant that neither
the court nor counsel believed him to be either mentally ill or incompetent.

       B. Denial of Defendant’s Request for a One-day Continuance
       As an additional ground for reversal of the judgment, the Court of Appeal
held that after granting defendant‟s Faretta motion, the trial court abused its
discretion by denying defendant‟s motion for a one-day continuance. Because we
read the record differently from the Court of Appeal, we disagree.
       “Although a necessary continuance must be granted if a motion for self-
representation is granted, it is also established that a midtrial Faretta motion may
be denied on the ground that delay or a continuance would be required.” (People
v. Clark, supra, 3 Cal.4th at p. 110.) A trial court may also condition the grant of
an untimely Faretta motion on a defendant‟s ability to immediately proceed to
trial. (People v. Valdez (2004) 32 Cal.4th 73, 103.)
       The record reflects that defendant‟s case was assigned to a trial department
on April 16, 2012. On April 17, defendant belatedly moved to represent himself
under Faretta. The trial court denied defendant‟s motion on the ground that a
continuance of at least several weeks would be required. The court explained to
defendant the following day that his Faretta motion was denied because he was
not prepared to proceed with the trial in a timely manner. On April 23,
defendant‟s Marsden motion was denied as baseless and his renewed Faretta
motion as a delay tactic. Jury selection began.
       As detailed earlier, when defendant again renewed his Faretta motion on
April 24, he once more indicated he would require two weeks to be ready for trial.
The trial court was still not prepared to continue the matter that long, but stated



                                          25
that defendant could proceed pro se if he was ready to continue with the already
commenced trial. When defendant responded that he was interested in
representing himself, the court provided defendant with a Faretta form and
explained defendant‟s constitutional rights. The court also admonished defendant
that if he chose to represent himself, he was “not going to get any continuances
unless they are reasonable requests, which given the time frame we‟ve given to
the jurors we need to move forward with this case. I’m not going to be extending
it beyond that time limit I gave to the jurors.” (Italics added.) In other words, the
trial court told defendant that it would condition the grant of his Faretta motion on
defendant‟s ability to proceed with trial with only reasonable continuances that
would not extend the trial beyond the two-week estimate given to the jury. The
court gave defendant some time to read over the Faretta form and reflect on his
decision. Approximately 40 minutes later, defendant and the court engaged in
another colloquy regarding the form and defendant asked the court whether, if he
proceeded to represent himself, it would grant him a continuance to the next day in
order for him to get copies of materials in the possession of the public defender.
The court told defendant “no,” indicating that it believed defendant already had a
copy of the file and that he was not entitled to any internal memoranda of the
public defender‟s office detailing how difficult a client he was. Defendant asked
the court several additional questions regarding the Faretta form. Once the court
answered them, defendant indicated he had read the entire form and understood it.
Noticing that defendant had still failed to fully complete the form, the trial court
went back to explain several additional matters. Only when it was satisfied that
defendant understood his rights and the consequences of his choice did the court
actually grant defendant‟s motion for self-representation.
       Thus, the record shows the trial court did not grant defendant‟s Faretta
motion and then subsequently deny defendant‟s motion for a one-day continuance.

                                          26
It instead acted within its discretion to condition the grant of defendant‟s Faretta
motion on his ability to immediately proceed to trial unless he had a reasonable
basis for a short continuance. When defendant suggested that if he were granted
leave to represent himself, he would need a one-day continuance in order to obtain
materials from the public defender‟s office, the court indicated it would not grant
such a continuance because it did not believe defendant‟s claim that he did not
have all of the materials to which he was entitled. The record provides no basis
for us to question that determination and we find no error in this respect.




                                         27
                              III. CONCLUSION
       The judgment of the Court of Appeal is reversed. Because the Court of
Appeal did not reach defendant‟s other appellate claims of sentencing error, we
remand the matter to the Court of Appeal for further proceedings consistent with
this opinion.
                                                         CANTIL-SAKAUYE, C. J.
WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                        28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Espinoza
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 233 Cal.App.4th 914
Rehearing Granted

__________________________________________________________________________________

Opinion No. S224929
Date Filed: July 11, 2016
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Paul Bernal

__________________________________________________________________________________

Counsel:

Lawrence A. Gibbs, under appointment by the Supreme Court, and E. Michael Linscheild, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Jeffrey M. Laurence, Acting Assistant Attorney General, Eric D. Share, Luke Fadem, Laurence K.
Sullivan, René A. Chacón and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Lawrence A. Gibbs
P.O. Box 7639
Berkeley, CA 94707
(510) 525-6847

Bruce Ortega
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1335
