Can Drug Overdose Waive the Right to be Present?

It is not uncommon to hear in court that a person in custody is refuses to come to court.  Sometimes it is because the person does not want to face a judge or have the criminal case continue toward a conviction.  Sometimes, the jailed person believes that if the case remains pending long enough without a resolution, the prosecution will offer a better plea bargain in the hope of simply resolving the case.

It is uncommon for a person out of custody to voluntarily absent himself or herself from coming to court because the person usually understands that the judge will issue an arrest or bench warrant for that person. 

However, occasionally, a person out of custody does refuse to come to court in an attempt to delay criminal proceedings.  The following case was a creative attempt at avoiding court and then claiming a violation of his constitutional right to be present for trial, thereby demanding reversal of a conviction reached in his absence.

Marcos Antonio Ramirez, age 19, was charged in Sonoma County Superior Court with first degree residential burglary (Penal Code § 459) and pleaded not guilty.  The evidence established that Mr. Ramirez had been using heroin for almost a year before he overdosed the night before the second day of trial.  He was in court for the first day of trial, during which time the jury was selected and sworn in.

Police and medical personnel were dispatched to his home and he refused medical attention.  The police who came to his house told him he needed to be in court the following day.  Ramirez then changed his mind and decided instead to go to the hospital to receive medical attention.

Ramirez had missed court before trial two months earlier on the first day of trial to heroin abuse and the first day of trial was continued.

Apparently, Ramirez hoped the judge would similarly continue trial while he took he was at the hospital.  His attorney notified the judge that defendant’s mother had called him and informed him that defendant was ill and in the emergency room at the local hospital.

The judge then heard from Sonoma County Police Officer John Bowly about his conversation with Mr. Ramirez at his home that morning.  The officer explained that he reminded Mr. Ramirez to be in court later that morning and Mr. Ramirez responded that he would be in court.  The officer described Mr. Ramirez as coherent and well aware of what was going on.  The officer then warned him that if he did not appear, the judge could proceed with trial in his absence.  Mr. Ramirez then stated he would like to go to the hospital instead.

Instead, the trial court judge, believing that Ramirez was “playing games” with the court and trying to manipulate his drug overdose to appear like a medical issue, ruled that Ramirez was voluntarily absent and continued trial without him under Penal Code § 1043(b)(2); see also Diaz v. United States (1912) 223 U.S. 442, 455.

He was then convicted in absentia and sentenced to five months in county jail.

Mr. Ramirez then appealed his conviction, arguing that the judge violated his constitutional right to be present at trial under the Sixth and Fourteenth Amendments by determining that he was voluntarily absent without conducting an evidentiary hearing regarding the circumstances of his absence and improperly denied his attorney’s request for a one-day continuance.

The court of appeal affirmed the trial court and Mr. Ramirez then appealed to the California Supreme Court, which affirmed this court of appeal, finding that the trial court had properly considered “the totality of the facts” before finding Mr. Ramirez impliedly waived his right to be present.  People v. Espinoza (2016) 1 Cal. 5th 61, 72. 

The California Supreme Court noted that a defendant’s absence from trial due to drug use is not per se voluntary for purposes of Penal Code § 1043(b)(2).  However, it is among the relevant circumstances that a trial court must consider when it determines whether defendant has voluntarily absented himself or herself from trial. 

We present this summary for our readers because it comes as a shock to some that a court may find that a defendant impliedly waived his or her right to be present at trial based on the “totality of the facts.”

For more information about the right to be present at trial, please click on the following articles: