PEOPLE v. ESPINOZA

Respondent’s Opening Brief on the Merits

Cal.June 23, 2015

COPY Sn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. 8224929 SUPREME COURT v. FILED ZEFERINO ESPINOZA,Jr., Plaintiff and Respondent, JUN 2 3 2015 Defendant and Appellant. Frank A. McGuire Clerk Sixth Appellate District, Case No. H039219 Deputy Santa Clara County Superior Court, Case No. CC954850 The Honorable Paul Bernal, Judge OPENING BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Acting Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General RENE A. CHACON Supervising Deputy Attorney General BRUCE ORTEGA Deputy Attorney General State Bar No. 131145 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 Telephone: (415) 703-1335 Fax: (415) 703-1234 e-mail: bruce.ortega@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page ISSUCS .oecccseceseeeseeeceseneceeceeneeeeceeeeeeeeecnaeeeecneneeeeseueentseenneeenseesesseeeeeeeeeaaereneaegs 1 TntrOductiOn......cccccccccesccccsseceseeeceeneecesneeerseneseeeeneesseeeaeeneeeeeneeeeeaeseeseaeeesenesennnas 1 Statement Of the Case ........cccccccccccsscecsceeeesneereseseneneeecesesseeesseeeeessaeeecenseeenaeees 2 A. The Charges ......cccccccescceseesserssessessseecssssseccsenessesvesseseeseeneeesnnes 2 B. Pretrial proceedings ........ ce eeessesecssseeesescsseeeeeeeneesseeeeeneesneees 2 C. Appellant waives counsel, but voluntarily and intentionally absconds when ordered to appear the next day for further trial 00...ecceceee sees eeeseseessesseseneeeeeseeseeeses 4 D. Evidenceandfurthertrial proceedings...eeeee eens 12 E, Posttrial proceedings oieeeeestessteeesceesseensessseeseeesereeens 14 F, APPeal... .ccccccccecceeceeceeneeessteseseveesssaseeeeeenereneereesensessseseeens 15 Summary Of APQUMENt. 0...ceeeeeeeceeseeeeeseseeseersenesseerersereaeeeteaes 16 ATQUMENEoeeee esc eeeecseereeerreeesernesenesenesneestectecseeernereteeesieetieesteatettneneete 20 I. Trial of a voluntarily absent pro se defendant may proceed under Penal Code section1043 without the defendant’s knowingandintelligent waiveroftrial rights or an appointment of Counsel.........cccscceccseeseeteeeeees 20 A. Applicable legal principles .........ccccesesseeseeesestsenees 20 1. Trial rights 0.0... ceceeseeeeeteeseeeeeereeeenereeneereeeaeens 21 2. Self-representation ......ceecceeceeeeseeeseeeeeaee 21 3. Trial in absentia...eeeteeeeeeesnseteneeeeens 22 B. Penal Code section 1043 applies to absconding pro Se defendant..... ccc cccceecceeseesseeseesseeereeteestsenees 24 C. Anyclaim that appellant did not knowtrial could continue and, thus, did not knowingly and intelligently waivetrial rights is forfeited and UACOTTOCE oo. .ecececeececceesnceeseneeeeecceeeeessseuenereeersseeesesereeeees 28 D. Whenthe pro se defendant voluntarily absconds the trial court is not constitutionally obligated to APPOINt COUNSEL] oo...eecece ceeesseeeteeeetseeeeeeeeeesseesses 33 _TABLE OF CONTENTS (continued) Page I. Thetrial court did not abuseits discretion in conditioning the grant of appellant’s Faretta motion on appellant receiving no continuance............00. Vevnsteteeneeeeeens 36 CONCIUSION 0... eeteeeecseeesesessessesevsssseessesscsscssssussssaesscssessateaueeaecavacerseusas 39 li TABLE OF AUTHORITIES Page CASES Chambers v. Mississippi (1973) 410 U.S, 284eecccccsescnreessernseeenesesnsseseecseesresneesensrarens 21 Clark v. Perez (2d Cir. 2008) 510 F.3d 382.eeeccceteeeeeeeetesseeteeseetrenreaens 27, 28 Crane v. Kentucky (1986) 476 U.S. 683 vceccccccceesceesecsseesesceessesaeessessesseeeessesseessenenstens 21 Crosby v. United States . (1993) 506 U.S. 255 vcciecceceeecteeseseecnecseeneeenesteesseeneeenseensennerennens 32 Curry v. Superior Court (1970) 2 Cal. 3d 707... eecceseeseesseeseceseesesessesesesseessesecaeeneesieneneteenaes 18 Cureton v. United States (D.C. Cir. 1968) 396 F.2d 671 vecccteeere cree eeeeeneetteeeneneenerneens 23 Diaz v. United States (1912) 223 U.S. 422 icescce cen ereeeeeersesteesesesseesneeenees 22, 25, 30 Falk v. United States (D.C. Cir. 1899) 15 App.D.C. 446 oo cceeeeceneeeeeteetertettereenertaey 30 Faretta v. California (1975) 422 U.S. 806 veeeee teseeereneerseeeeneeeseeneeessreseerereaeenees passim Godinez v. Moran (1993) 509 U.S. 389 oe eeeestecsereeesensceeseeseeserssceseaesaeseeeteneneneesees 21 Herring v. New York (1975) 422 U.S, 853 .ocececseesccneseeesenscnsesecseeesseneeseeneeneesenereneenees 21 Illinois v. Allen (1970) 397 U.S. 337 .ececseseeseeeeceseeseessesesseeecneesestenseenesteesieeneneney 25, 30 Johnson v. Zerbst (1938) 304 U.S. 458cececee este eceseeeteeteenseseeseesseeneesneeteeneys 29, 36 ili TABLE OF AUTHORITIES (continued) Page McKaskle v. Wiggins (1984) 465 U.S. 168ocecessessscsesseseeecsssesesecscsessssavseserseteeseseres 17 People v. Bigelow a (1984) 37 Cal.3d 731cccssccssssssccsssesecsesscsssssssscscsscsssssaseetaseetaesanss 37 People v. Brante (Colo. App. 2009) 232 P.3d 204 ..ccccecccscscsssesscscsscsscsssssssseevseseees 28 People v. Clark (1993) 3 Cal.4th 99 ooiceecsssesesersessssensssenaeseeeeeseeeetseaeeeeatenes 37 People v. Concepcion (2008) 45 Cal.4th 77 oeeecccccssssssesesesscscsecscssscssssssesseseeevaceesers 21, 30 People v. Connolly (1973) 36 Cal.App.3d 379.0... cccccsesssessescessscsssscsvssesceseseeeens 10, 11, 23 People v. Fulton (1979) 92 Cal.App.3d 972... eccccscsscsssessesesssscscsscsesessesssactsvsceresesrens 37 People v Hayes (1991) 229 Cal.App.3d 1226....ccccccccscssesssssscsssscsvsevssseececsasersaeeaess 19 People v Jenkins (2000) 22 Cal.4th 900 oo. esccscsssssecscseseessevscscssscescssseaseesseaseevseersas 37 People v. Koontz | (2002) 27 Cal.4th 1041 occccsssscssssssessesssssscsesssseasessseseceevsesaces 21 People v Lewis (2006) 39 Cal.4th 970 oo. eeccsssssssscssscsessessscsssssesseassssetesaversees 17, 19 People v. Maddox (1967) 67 Cal.2d 647. iccccsecssccsesscseesessesssssssssssesaeesesectesrsaseass 37 People v. Marsden (1970) 2 Cal.3d 118iceccsessesessecscsesssesssscsescessessesserensenees 2, 3,8 iv TABLE OF AUTHORITIES (continued) Page People v. McKenzie (1983) 34 Cal.3d 616.0... ccccceeeeseesneeenerseereeseesestensasisassssateeenes 26, 27 People v. Nauton (1994) 29 Cal.App.4th 976.0... ciceeseeneeeesteessecsecnsesssessesscsseeeeeseeans 20 People v. Parento (1991) 235 Cal.App.3d 1378.0... ccc eeeseesrereeesesesenssereeeees 26, 27, 28, 31 People v. Saunders (1993) 5 Cal.4th 580 oo. ccceeeseesscesersetsesessssseessesssserecseerseesenseess 30 People v. Teron (1979) 23 Cal.3d 103... ccccccecsesscereseeeererseeseesteeneeeseetesererseeneeees 26, 27 People v Traugott (2010) 184 Cal.App.4th 492.00 ccnetseeeseseeeseeeseessestsesssereseeenees 19 People v. Valdez (2004) 32 Cal.4th 73 ..eeecccesecessecereeseesessesescnsseessersessscssseeseeseesengs 38 State v. Eddy (R.T. 2013) 68 A.3d 1089oeseteeeeteenetteeteeenesenenseseeseeseinere 28 State v. Worthy (Minn. 1998) 583 N.W.2d 270... cece eeeeceeeseeseeneeseessseseessseseeecaneeneees 28 Strickland v. Washington (1984) 466 U.S. 664 ooo cceereeteeteeecteetecsseeneaeeeerssesssseessseesesneenea 21 Taylor v. United States (1973) 414 U.S. 17 eeeecscceesseeeeeseeseeeesetesseeseesesasesaesees 19, 24, 25, 26 Torres v. United States (2d Cir. 1998) 140 F.3d 392eeeeeeseeetsererseeeentserseeeseesereeseneeey 28 United States v. Lawrence (4th Cir, 1998) 161 F.3d 250...ccccsssssssssessssssssssssssesessssssensessessseeneeees 28 TABLE OF AUTHORITIES (continued) Page United States v. Olano (1993) S507 U.S. 725 vooccccccccccssssseccecceesensessseccesseeeseseeeesesstaeeeeesessnssees 29 STATUTES Evidence Code § 402ccc cccessscccesssececcesseeeceueeessnsnceececeeecsenessesnseseeeseseceennnsseeeeenees 10 Health and Safety Code oo § 11350, SUBCIVISION (2)... .ceecccccceeecsceecsstteeeeteeceseeeeeeetensaeseeseaneeteaaaes 2 § 11357, SUbdIVISION (D)........cccceeeessecceeeeesessessecseseeecseseeseceeeestaaeeseegees 2 § 11375, sUbdIViSION (D)(2) ....cc ee eecceseceesstesetseecseeeeeeeeesseeseeersnerensaaes 2 Penal Code § 136.1, sUbdIVISION (C)(1) oo. ecececsccsessecceeeseceesseeeeceesesteesssssaeestaeeess 2 SDDccc ccccseccesssteeeseesseeeeesseesssssseeseescessessesesesesaeeeeeaseeseesereesagsesseeees 1 § 10438 ieeeenneeeeecetetaeeeeseetaeeesesaaueessaeecesaeeeeeseseneneeentaes passim § 12021, subdivision (a)(1) oe. cececcccesessseecceseeeceseeeecceeserseeesesetseestsaas 2 § 12316, SUbCIVISION (D)(1) .......eeeeeececeeseeeeecssteestseeeeseeseeseeeesteneesestenees 2 CONSTITUTIONAL PROVISIONS California Constitution article 1, § 15 Leeccccseccsssceseeeecessssseeeeeesesessreeeeseseeeesseraeeeesenenneeees 21 United States Constitution Sixth Amendment... ccccccsecsseeeseseeseeeseseness 17, 18, 21, 28, 35, 36 COURT RULES Federal Rules of Criminal Procedure TUle 43 cece ccccececccccececcesscseesauuseseeeuseseseeeuresuecesesseeusueuuugenseceseeseeees 24, 25 Vi ISSUES 1. Whether a voluntary and intentional absenceof a self-represented defendantforfeits trial rights otherwise afforded by the defendant’s presence and authorizes continuedtrial, without a knowing andintelligent advanced waiverofthe rights. 2. Whether granting defendant’s motion for self-representation without continuing jury selection for one day was an abuseofdiscretion. INTRODUCTION Appellant was charged with multiple felonies. He sought and received numerous continuancesoftrial and substitutions of appointed counsel, resulting in over two years of delay. During jury selection, he knowingly and voluntarily waived his right to counsel after being expressly admonished by the court that further continuances would not be granted. Herepresented himself during the prosecution’s case later that day. The next day, he failed to appear as ordered, causing a further delay oftrial. Extensive efforts to contact appellant failed. Invoking Penal Code section 1043, the trial court found that appellant voluntarily and knowingly absented himself to avoid trial and punishment. Trial concluded in appellant’s absence with the jury’s return of mixed verdicts. Before sentencing, appellant reappeared with new retained counsel and later filed a motion for a new trial to challengethe trial held in absentia. The court ultimately rejected his claim and sentenced him to prison. The resumption ofjury trial following appellant’s voluntary and intentional abandonmentofthe trial was proper. Following a knowing and voluntary waiver of counsel, a pro se defendant’s voluntary abandonment of trial forfeits constitutional trial rights of an accused to personal presence, confrontation of adverse witnesses, and the presentation of a defense through counsel, until such time as the defendant personally exercises those rights in thetrial itself. As a result, and contrary to the decision of the Court of Appeal below,a court’s failure to admonish a pro se defendant sua sponte about the potentialfor trial in absentia, or its failure to sua sponte appoint a standby or former counsel, where a pro se defendant voluntarily absconds, affords the defendant no basis for a newtrial. Additionally, the trial court did not abuseits discretion by accepting appellant’s voluntary and knowing waiver of counsel while refusing a midtrial continuance. STATEMENT OF THE CASE A. The Charges A December 2009 information charged appellant with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), possession ofa controlled substance withouta prescription (Health & Saf. Code, § 11375, subd. (b)(2)), possession of marijuana (Health & Saf. Code, § 11357, subd.(b)), making a criminal threat (Pen. Code, § 422), possession of a firearm as a felon (two counts) (former Pen. Code, § 12021, subd. (a)(1)), possession of ammunition as a felon (former Pen. Code, § 12316, subd. (b)(1)), and attempting to dissuade a witness by use orthreat of force (Pen. Code, § 136.1, subd. (c)(1)). (1 CT 83-86.) B. Pretrial Proceedings During pretrial proceedings that consumed overtwoyears,the trial court appointed seven public defenders, who made some 65 appearances on appellant’s behalf. (10 RT 322, 401.) According to the court, the case was set for trial “maybe 50 times.” It granted the continuances to accommodate appellant personally, not his defense attorneys. (10 RT 399.) Four different times, appellant moved for a substitution of appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). (1 CT 98, 229, 242, 247.) The court held hearings on appellant’s Marsden motions, andthe transcripts of the hearings were unsealed bythetrial court. (13 RT 1014-1015.) During the hearings, appellant exhibited obstreperous and unruly behavior, made unsubstantiated claims about a romantic relationship between the investigating officer and a witness, repeatedly called his attorney a liar, denied discovery in his possession had been received, and feigned ignorance of the proceedings. (See 10 RT 383-384, 389, 393-403, 416-417, 460-463.) To facilitate communications,the trial court ultimately ordered appellant and his attorney to confer daily. (10 RT 430-431.) On April 17, 2012, about a week beforetrial, appellant moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). As part of his motion, appellant requested a minimum continuance of three weeksfor trial preparation, asserting that he had been “kept in the dark for the past three years.” (10 RT 319-322.) At a hearing, the trial court found appellant was attempting to “manipulate the court system”through the Faretta motion, admonishing him, “if you truly wanted to represent yourself you could have brought that motion any time in the ~ last few yearsin this case.” (10 RT 324.) The following day, April 18, 2012, appellant’s attorney, Mark Camperi, announcedthe defense’s readiness for trial. (10 RT 358.) However, appellant again requested self-representation and a continuance. (10 RT 358.) The court denied the motions, stating that the case had been “rattling around the courthouse. . . and it’s not for any lack of effort on the part of the D.A.or the public defender.” (10 RT 358; see also 10 RT 427 [court characterizes the motionsas a “delay tactic”].) C. Appellant Waives Counsel, but Voluntarily and Intentionally Absconds When Ordered to Appear the Next Dayfor Further Trial Jury selection began on April 23, 2012, and continued through the following day. On April 24, 2012, appellant again moved to dismisshis attorney under Marsden and to represent himself under Faretta. (10 RT 454-483.) Ata hearing, the court found appellant was making false statements, and admonished him notto “make things up to justify your goal.” (10 RT 469; see also 10 RT 471 [court orders: “don’t be lying to me,” “please stop lying”], 10 RT 473 [court finds appellantis “being obstreperous for the purpose of playing the system”].) The court denied appellant’s Marsden motion. Appellant requested self-representation, and asked for cocounsel. (10 RT 476.) The court denied appellant’s request for cocounsel, at which point appellant requested two additional weeks to prepare for trial on his own. (10 RT 476-477.) The court told appellant that the fact he would need such a continuanceif he were grantedself- representation was the reason whyhe wasnot being permitted to represent himself. (10 RT 476-477.)' Momentslater, the court told appellant thatit og ' The colloquy is as follows: THE DEFENDANT:I don’t mean to disrespect the courts at all. I’m trying to get some questions here. How comeI can’t get another attorney or how come J cannotfire him so I can go pro per. THE COURT: You can,ifyou are ready to proceed to trial without him you candoit. THE DEFENDANT: Well, I need a co-counsel then. THE COURT: Youare not permitted to have co-counsel. (continued...) would give him fair trial and reiterated that it would permit him to represent himself only if he was “ready to go to trial now.” (10 RT 480.) The court told appellant that he had two options: (1) trial with counsel, or (2) self-representation without a continuance. The court stressed, “I can’t continue this case.” (10 RT 480.) Appellant stated, “I will represent myself, your Honor.” (10 RT 480.) The court gave appellant a Faretta waiver form, and admonished him: THE COURT: Okay. Mr. Espinoza, I want to makeit clear if you represent yourself you are not going to get any special treatment. You are not going to get any continuance unless they are reasonable requests, which given the time frame we’ve given to the jurors we need to move forward with the 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 comein, if they’re late because their bus didn’t pick them up we’re going without them. So I want to make sure you understandthat. When yourepresent 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 proceedin a trial. You don’t get to file an appeal saying that you had ineffective assistance of counsel becausethis is your choice. (...continued) THE DEFENDANT:I am requesting that when I go pro per because J won’t be ready like tomorrow.It will take me two weeks. THE COURT: Andthat’s why you can’t have Mr. Camperi taken off the case. (10 RT 476-477.) So I know youare a little hot under the collar. You might want to take a few minutesto decide, reflect on it. Whatever you wantis fine with me. Read over the Faretta form, take your time, let me know whatyou think. There is no shamein saying I want [counsel]. There is no shamein saying I wantto represent myself. Okay? THE DEFENDANT: Yes, your Honor. THE COURT: Sothink aboutit, take your time and do whatyouthink is best. THE DEFENDANT: Okay. Thank you, your Honor. (10 RT 481-4872.) The court provided 40 minutes for appellant to review the form concerning self-representation. (10 RT 485.) When proceedings resumed, appellant told the court that he had filled out the form “to the best of[his] knowledge.” (10 RT 485.) 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.” (10 RT 485.) Appellant asked, “Can I readit a little bit more, your Honor?” The court agreed to the request: “So go ahead andlookatit and I want to make sure you understand what you’re doing.” (10 RT 485.) This colloquy followed: THE DEFENDANT: Okay. Your Honor, can I ask a question? THE COURT: Of course, you can. THE DEFENDANT: Metaking the case today can I at least get a continuance to tomorrow? THE COURT: No. THE DEFENDANT:Just to get everything, because he’s going to hand overthefiles, your Honor. Is that how—or am I not entitled to it? THE COURT: You have a copyofthefile. THE DEFENDANT:No,but I’m asking whateverelse they may havethat I don’t have. THE COURT: Youare notentitled to internal memorandumsabout how difficult you are, you don’t get that. THE DEFENDANT:No,I’m asking about statements and videos, am I entitled to that stuff, your Honor? THE COURT: Yes, you are. You will get a copy ofall the discovery in this case which you already have. MR. CAMPERI: And, your Honor, I can assure the court I will go back andlookto see if there is anything that I am unawareofat this time and I’ll bring it right over if there is something I am unawareofatthis time. THE COURT: Thank you. (10 RT 485-486,italics added.) The court discussed with appellant the potential penalties in the event that he was convicted on the charges. (10 RT 487.) The court answered affirmatively when appellant asked if he wouldbe ableto contactall witnesses andtalk to the prosecutor. (10 RT 487.) Appellant told the court that he understood the Faretta waiver form. (10 RT 487.) The form stated that appellant had the right to confront the witnesses against him. (1 CT 251.) The court orally admonished appellant concerning the Faretta waiver of counsel, as follows: THE COURT:Do you understand you maynotbe able to change your mind,or if you do change your mindthe court doesn’t have to accept your change of mind? Mr. Camperiis not going to be coming back. You are not going to get co-counsel, side counsel, assisted counsel or any kind of counsel. Mr. Camperi does not have to take your calls or answer any of your questions because there’s no attorney/client relationship anymore. Do you understandallof that? THE DEFENDANT:Yes. THE COURT: And are you willing to go totrial representing yourself? THE DEFENDANT: Yes. THE COURT: Very good. So if you can lodge that with madam clerk. (10 RT 487-488.) The court returned the Faretta form to appellant. After an unreported discussion betweenthe parties, the court made the following observations: THE COURT: At times Mr. Espinoza has pretended notto know what’s going on. Andthat 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 everybodyelse. He’s been working on this case since September 3rd, 2009. Hehas 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 was unnecessary, but they did them nonetheless. The defendant has also 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 reasonabletactical decisions of his various attorneys. Andthat 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 underthe law even if he is not going to do as good a job ashis attorney would have done, that is Mr. Espinoza’s choice and he does so willingly. (10 RT 492-493.) The court and appellant then engaged in this colloguy: [THE COURT:] I am now reviewingthe petition to proceed in propria persona. On the parts which I putthelittle arrowsin pencil you now put yourinitials in them, did you read and understandall of those sections? THE DEFENDANT: Yes. THE COURT:Arethese yourinitials throughout the document? THE DEFENDANT:Yes. THE COURT:Doyou have any questions for me about this document, yourrights, your obligations, the consequences, and your decision? THE DEFENDANT: DoI have a question? No. THE COURT:Very good. Then I will accept this and we will file it with madam clerk. THE DEFENDANT: Thank you, your Honor. (10 RT 493-494.) Trial proceeded on April 24, 2012, with the completion of voir dire and the swearing of the jury. (10 RT 494.) The prosecutor gave an opening statement. Appellant declined to give one. (10 RT 510.) The prosecution called witness Gonzalez. Appellant made only one objection to the prosecutor’s direct examination and declined cross-examination of the witness. (10 RT 517.) At the conclusion of Mr. Gonzalez’s testimony, the court dismissed the jury for the day. (10 RT 529.) Thetrial court ordered appellant to appear in court at 8:45 a.m. the following morning. (10 RT 529; 11 RT 606.) Appellant failed to appear in court whentrial resumed the following morning on April 25, 2012. At 9:00 a.m., the court and prosecutor attempted to contact appellant. (11 RT 606.) At 10:00 a.m., the court dismissed the jury until the next morning and ordered a body attachmentfor appellant. (11 RT 606.) The next day, April 26, 2012, the court reconvened at 8:50 a.m. Appellant again failed to appear. The court made the following statement: — [T]he court is making a finding under Penal Code section 1043 that the defendant has voluntarily absented himself from this trial. The court finds that he knowingly absented himself. The court finds that he abandonedthistrial purposefully and that the purpose for which he choseto not cometo trial was evasion of the trial or avoiding penalty for the alleged crimes that he allegedly committed or another delay tactic with the defendant perhapsbelieving that if he didn’t show uptotrial that the court would terminate this jury trial, send the jurors homeandthen when he comesin in a month he would try to delay thetrial again for anotherthree years. The court has read and considered People v. Connolly [(1973)] 36 Cal.App.3d 379 at 385 [(Connolly)]. The court finds that prior to the defendant disappearing every day that the court wasscheduled, both for in limine proceedings, his Marsden proceedings, of which there were many,andforthetrial schedule that Mr. Espinoza wasalwaysat court either before or at 8:45 a.m., that he always was accompanied withhisgirlfriend whose name is Anna Hernandez. There were extensive conversations about the schedule. The defendant was present during those conversations. The defendant was present when wepenciled out the schedule of witnesses and what days we were goingto be in session. . . [a]nd that court would alwaysbein session at 9:00 and that Mr. Espinoza, his attorney and the D.A. were expectedto behereat 8:45 every morning. There werealso discussions about witness availability and the timing of witnesses. Mr. Espinoza was present when we talked about the need for a[n] [Evidence Code section] 402 hearing on some ofthe witnesses; in fact, it was on the record. _ Andthat as those witnesses appeared, we would haveto do a 402 hearing before theytestified in front of the jury. Also, the defendant was given the rules of court, and he wasgiven a written copyofthe rules of court. Thefirst page of the rules of court, the very first rule says, “you must be incourt every dayat 8:45” and that sentence is underlined in my written rules of court. Heread it, he highlightedit, he retained a copy of that so he knew hehadto be hereat 8:45. The defendant was awarethat thetrial was not going to end on Tuesday of this week butthat it would be in session on Wednesdayandthereafter until completed. 10 So weare in a situation now that it’s obvious that he didn’t sleep in, that he purposefully abandonedthetrial. (11 RT 608-610.) The court described the efforts made to contact appellant. The court requested the prosecutor to contact all people who might know appellant’s whereabouts, and to provide any information to the police department,the district attorney’s office, and the court itself. (11 RT 610.) At the court’s recommendation, the prosecutor contacted the border patrol. (11 RT 611.) The police dispatched a surveillance team to appellant’s home,as well as to other addresses where appellant might be located. (11 RT 611-612.) Neither appellant nor his vehicle was located. (11 RT 612.) The courtroom bailiff also attempted to locate appellant. On April 25, 2012, the bailiff had called appellant’s phone numberand left messages. (11 RT 615.) Thebailiff also called appellant’s father. (11 RT 613.) A Spanish-speakinginterpreter left a message on appellant’s father’s voicemailtelling him to inform appellant that he was required to appear in court. (11 RT 613.) Thebailiff also contacted appellant’s workplace. (11 RT 613-614.) Appellant left no message for the court clerk. (11 RT 615.) In light of appellant’s disappearance, the court ruled: “Soforall those reasons, the court finds the defendant[] has knowingly and voluntarily absented himself from the trial. We are going to proceed in absentia pursuant to Penal Code 1043 [presence of defendantattrial] and People versus Connolly” [proceeding in absence of defendant]. (11 RT 615.) Before resumingtrial, the court informed the jury: “It is clear that the defendant has not chosen to continue with thistrial and the law providesif the defendant disappears in the middle ofa trial we proceed without him. So weare goingto dothat at this time.” (11 RT 624.) 1] D. Evidence and Further Trial Proceedings The prosecution introduced the following evidence. Augustine Gonzalez lived for about four months in a rented room in appellant’s house. (10 RT 511-512.) When Mr. Gonzalez movedin, appellant had shown him a pistol, which appellant said he kept underhis pillow. (10 RT 520.) In early September 2009, Mr. Gonzalez told appellant that he was movingout, which caused “tension”and “every day .. . a verbal confrontation.” (10 RT 526.) On September 3, 2009, Mr. Gonzalez found appellant had replaced the lock onthe front doorof the house. (10 RT 513; 11 RT 625.) The new lock was improperly installed, allowing Mr. Gonzalez to enter by pushing the door open. (10 RT 513.) Mr. Gonzales found appellant and appellant’s girlfriend in the kitchen, and asked why appellant changed the lock. Appellant screamed, “[Y]ou don’t live here” and asserted that Mr. Gonzalez could not prove otherwise. (10 RT 514-515.) Mr. Gonzalez yelled back andthreatenedto call the police. (10 RT 515.) Appellant replied, “Don’t you know I’m connected. I'll hurt you. I'll kill you. Go ahead.” (10 RT 516-517.) Scared, Mr. Gonzales backed away, but appellant charged andkept yelling. Mr. Gonzalez called the police, who directed him to leave appellant and go outside. (10 RT 516.) Appellant followed Mr. Gonzalez across thestreet, screaming, “I’m goingto get you. I’m going to kick your ass, you’re dead.” (10 RT 518-519.) Appellant repeated, “If you call the police I am going to kill you. When I gotojail I’m going to comeback out and I’m still going to kill you. I have family.” (10 RT 519.) Recalling appellant had a handgun, Mr. Gonzalesreportedit to the dispatcher, who conveyed that fact to police officers. (10 RT 527; 11 RT 631, 670.) The police arrived while appellant wasstill following Mr. Gonzalez, who was several houses away from appellant’s residence. (10 RT 519.) The officers spoke to appellant and handcuffed him. (10 RT 521.) An 12 officer asked if they could search appellant’s room, and he responded, “Sure, go ahead.” (11 RT 627, 680.) Appellant said he kept a shotgunin his closet and had a handgun underhis mattress. (11 RT 671, 681-682.) The police found a 12-gauge shotgun and a “sidesaddle” holder of ammunition in appellant’s bedroom closet, and a loadedpistol anddigital scale underhis mattress, (11 RT 636-637.) In appellant’s bathroom were tin containers of marijuana, a box of ammunition, and morphine, Diazepam, and Lorazepam pills. (11 RT 640-643, 648, 688-689.) After the prosecution rested its case, the trial court described on the record the efforts by the prosecution, the police, the FBI, the Border Patrol, and “12 other police agencies in the Bay Area”to locate appellant. (11 RT 696.) Since appellant’s disappearance, the San Jose Police Department had maintained surveillance on his house, his father’s house, and other locations associated with appellant. Appellant had not been located. (11 RT 696- 697.) The court instructed the jury: “During a portion ofthetrial, the defendantfailed to appear for the court proceedings. Do not considerhis absence for any purpose in your deliberations.” (11 RT 709.) The court reiterated this admonition during the prosecutor’s closing argument and elaborated on the instruction before the jury deliberated. (11 RT 718, 734- 735, 754.) The prosecutor also told the jury to heed the court’s instruction not to consider appellant’s absence. (11 RT 731.) The jury returned a mixed verdict, finding appellant guilty of possession of a controlled substance, possession of a controlled substance without a prescription, possession of marijuana, possession ofa firearm as a felon (two counts), and possession of ammunition as a felon. The jury acquitted appellant of making criminal threats, and attempting to dissuade a witness through the threat of force. (2 CT 320-327.) 13 The court had bifurcated the felon-in-possession counts. After the jury returned verdicts on the other charges, it received evidence of appellant’s prior convictions, and it was reinstructed not to consider appellant’s absence for any purpose. (11 RT 744-756.) After brief deliberation, the jury returned guilty verdicts on the felon-in-possession counts. (11 RT 757-758.) Thecourt set a sentencing date. (11 RT 760-761.) The court also described for the record its process of crafting jury instructionsin appellant’s absence. (11 RT 761-762.) E. _Posttrial Proceedings A monthafter trial, appellant returned to court. He had not been in custody and appeared ofhis own volition. (12 RT 903-904.) He had been hiding at his girlfriend’s house and hadretained a new attorney. (12 RT 904-905; 13 RT 1004, 1029.) At the attorney’s request, the court continued sentencing for two months. (12 RT 906.) In October 2012, appellant dismissed his retained counsel and requested an alternate public defender. (13 RT 1006-1007.) The court found appellant had engagedin a “pattern of delay, and a pattern of abusing the court process,”but it nonetheless appointed an attorney for him. (13 RT 1007, 1009, 1011.) Appellant moved for a newtrial, in part on the ground that the court erred in continuingtrial in his absence. (13 RT 1014, 1022.) Thetrial court denied the motionfor newtrial, citing appellant’s history of “delay tactics, unreasonable expectations, dishonest statements to the court, and manipulationsofthe process.” (13 RT 1026, 1030.) The court added: In Mr. Espinoza’s absence duringthetrial, I, as a court, voiced a defense position on behalf of the defendant asif he were here duringthetrial. I iterated what the defense would wanton all substantial issues and motions. I basically sat in defense counsel’s seat to protect the rights of the defendant, and 14 I took all possible, reasonable defense positions into account before I ruled on any issues that were before the court in the defendant’s absence. So the court did everything it could given the situation that defendant put the court in to make sure that the court was following the law, completing thetrial, and making sure that the jurors were deciding the issue, on the right issues before them and not on inappropriate issues. So forall of those reasons the motion for new trial is denied. (13 RT 1029-1030.) In connection with sentencing, appellant informed the probation officer that he had “stopped attending the Court proceedings because he _ wasadvised by an attorney to stop going so that there would be cause for a mistrial.” (5 CT 984.) Appellant said that he did not understand “how the proceedings continued without being present in Court and he would like this case to be considered a mistrial.” (5 CT 984.) Thetrial court sentenced appellant to prison for two years and eight months. (5 CT 1038-1040.) F. Appeal The Court of Appeal reversed the judgment. It held the trial court erred in proceeding with trial in the absence of appellant or defense counsel because appellant did not knowingly waive his fundamentaltrial rights, including the right to be present and the right to confrontation. (Typed Opn.at pp. 2, 15-19.) The Court of Appeal reasonedthat the trial court had three options from which to choose apart from proceeding in appellant’s absence or declaring a mistrial: (1) the court could have appointed standby counsel solely to observe the proceedings, then could have appointed standby counsel to represent appellant after he failed to appear; (2) the court could have simply reappointed the discharged counsel for appellant after he failed to appear; or (3) the court could have warned appellant during the Faretta warnings processthat the trial would continue without him if he voluntarily 15 absented himself and that his doing so would result in a waiverofhistrial rights. (Typed Opn.at pp. 18-19.) The appellate court held the trial court’s failure to select amongthese options, as opposed to orderinga trial of appellant in absentia or a mistrial, was structural error, requiring automatic reversal. (Typed Opn.at pp. 2, 19.) The Court of Appealalso held, as a separate ground ofreversal, that the court abusedits discretion in denying appellant’s motion for a one-day continuance whengranting appellant’s Faretta motion to waivecounsel. (Typed Opn.at pp. 2, 20-23.) The court stated that the trial court had engaged “in a“sudden about-face’” whenit granted appellant’s Faretta motion after denying other Faretta motions on the ground appellant was not prepared to proceedto trial. (Typed Opn.at p. 21.) Recognizinga trial court may deny an untimely Faretta motion on the groundthat granting the motion would involve a continuance for preparation, the court held the rationale ofthat doctrine requiresthat if the trial court grants the untimely motion, it must then grant a reasonable continuance for preparation by the defendant. (Typed Opn.at p. 22.) SUMMARY OF ARGUMENT Jury trial properly resumed following appellant’s midtrial failure to appear. The court’s finding under Penal Code section 1043 that appellant voluntarily and knowingly absented himself with the intent to avoidtrial and punishment wassufficient legal authorization fortrial in his absence. Appellant absented himself with requisite knowledge because he was ordered by the court to appear and knewhis failure to appear breachedthat order. Thetrial court had no obligation to admonish him sua sponte that nonattendanceattrial waived rights like personal presence, confrontation, and the right to present a defense—any morethan the court is obliged to admonish a pro per defendantthat taking the stand waivesthe privilege 16 against self-incrimination to the extent of relevant cross-examination or that a failure to offer relevant evidence waivesthe right to present a defense. Norwasthere an obligation to appoint counsel when appellant disappeared. Criminal defendants have both the right to be represented by counselat critical stages of the prosecution andthe right, based on the Sixth Amendmentto the United States Constitution as interpreted in Faretta to represent themselves. (People v. Lewis (2006) 39 Cal.4th 970, 1001 (Lewis).) Appellant made a voluntary and knowing waiverofthe right to counsel and neverretracted his waiver until long after trial. Assuming, and it is a large assumption,that the Sixth Amendment would allow a court to terminate a pro se defendant’s right to self-representation when he or she voluntarily fails to appearfortrial, nothing in the Constitution compels a court to do so. Appellant still acted as his own attorney when he absconded rather than attendtrial as he was orderedto do. The “core” Faretta right is that a pro se defendantis constitutionally empoweredto exert actual control overthe case he or she chooses to present to the jury. (McKaskle v. Wiggins (1984) 465 U.S. 168, 178.) Consistent with the dignitary and autonomyinterests protected by Faretta (see id. at pp. 176-177), self-representation necessitates the accused’s entitlement to select his or her defense or to make no defense. Appellant voluntarily absconded during the prosecution’s case. As a result, he deliberately made no defense to the jury. A pro se defendant, who,for whatever reason, makes that decision has exercised complete control of the case he choosesto present, namely, none. Asrespects the Faretta right, a pro se defendant whohidesfor the balanceoftrial exerts as much control of whatis presented to the jury as the pro se defendant whoinserts earplugs andreads a book at counseltable. To acknowledgethat pro se defendants act as their own attorney by abandoningtrial is to recognize the reason a court lacks a constitutional 17 obligationto protect trial rights necessarily forfeited by defendant’s action as his own counsel. Here, thetrial court found appellant absconded in hopes of further delaying the proceedings. A sua sponte appointment of standby or former counselto continuetrial could result in much less delay than appellant hoped. A long delay resulting in a loss or diminution of prosecution evidence might have provided him a better defense in the future than an attorney sans client could provide ata trial in progress. Alternatively or additionally, appellant might have abscondedout of awareness (conceivably, gleaned from an attorney’s volunteered advice) that the constitutional protection against double jeopardy would preclude retrial were the court provokedinto declaring a mistrial without his express consent, thereby depriving him “of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 717.) Whatever the true reason for his decision, appellant selected nonappearanceashis best (and perhaps from his perspective his only viable) means of exercising control overhis case. Since appellant’s Faretta rights subsisted until the jury was discharged, his nonpresence andthe resulting forfeiture of his constitutional trial rights represent, in the Sixth Amendmentsense intended by Faretta, his decision as his own attorney. Regardless of a court’s policy preferencesin this regard, the trial court validly exercised its statutory power under Penal Code section 1043 to continuetrial in appellant’s absence. There is no established Supreme Court authority for a rule, like the one embraced by the Court of Appeal, that trial courts must select among a set of nonstatutory procedural “options” to address the voluntary absence ofa self-represented defendant. A pro se defendant does not, contrary to the Court of Appeal’s seeming view,reassert the right to counsel, or otherwise trigger a prophylactic abrogation of the Faretta waiver of representation by counsel, by 18 voluntarily absconding. That view is inconsistent with the established principle that a defendant may forfeit the rights to presence, confrontation, and counsel, by choosing to abscondafter voluntarily and knowingly waiving counsel. It is irrelevant whetheror not the defendant abscondedafter being admonishedthat the trial could continue in his absence. Of course, constitutional rights like the right to attend trial personally are necessarily lost based on a defendant’s misconduct in the courtroom only after the court has admonished the defendant of the consequences of continued disruption of proceedings. (See People v. Hayes (1991) 229 Cal.App.3d 1226, 1233.) But admonitions of the potential consequencesto the defendant’s trial rights are beside the point when the defendant absconds. Nodisruptive misbehavior occurs in the courtroom. The defendant simply is gone, andforfeiture oftrial rights follows from that fact. “{O]ne cannot logically assert the right to be present duringtrial at the same time heis absconding ....” (People v. Traugott (2010) 184 Cal.App.4th 492, 504, citing Taylor v. United States (1973) 414 U.S. 17, 20 (Taylor) [defendant whoflees courtroom in midstoftrial knowsthatthetrial will proceed in his absence].) Here, appellant’s concerted effort to obstruct furthertrial “constituted volitional conduct for which he may properly be deemedto have absented himself from the proceedings, and to have waived anyright to be present.” (Lewis, supra, 39 Cal.4th at p. 1043.) With or without a sua sponte admonition about the consequences of abandoningtrial, appellant’s waiver of counsel was voluntary andintelligent. Faretta requires his choice not to exercisetrial rights to be respected. The forfeiture of those trial rights is the cost that appellant pays for his control of the defense and his dignitary and autonomyinterests to be accorded the respect required by Faretta. 19 Whenthetrial court accepted appellant’s waiver of counsel, it did so only after admonishing appellant that he would not receive any continuance of the jury trial already in progress—even a delay of one day’s duration. Thetrial court did not abuse its discretion and properly denied appellant’s motion for a one-day continuanceafter granting his Faretta motion. The court did not rule unreasonably in only accepting appellant’s waiver of counsel after appellant understood he would receive no continuance given the delays appellant had already forced this case to undergo. ARGUMENT I. TRIAL OF A VOLUNTARILY ABSENT PRO SE DEFENDANT MAY PROCEED UNDER PENAL CODESECTION 1043 WITHOUT THE DEFENDANT’S KNOWING AND INTELLIGENT WAIVER OF TRIAL RIGHTS OR AN APPOINTMENT OF COUNSEL Conducting a trial when a defendantis voluntarily absent knowing that he is obligated to appearsatisfies constitutional guarantees. Therule is not different for a self-represented defendant. Such a defendant has not only waivedhis right to counsel, but his voluntary and knowing absence acts as a forfeiture. In particular, it forfeits a claim that the pro per defendant was deprivedoftrial rights like presence, confrontation of witnesses, or presenting a defense in his absence. Thetrial court has no constitutional or statutory obligation to advise the pro per defendant, in advance, of the consequences of abscondingor to appoint counsel when and if the defendant absconds. A. Applicable Legal Principles Three areas of law are relevant to this case: (1) thetrial rights affordedto all criminal defendants;(2) the principles that govern self- representation; and (3) trial in absentia. 20 1. Trial Rights The confrontation clause of the Sixth Amendmentof the United States Constitution affords an accusedtheright to be present at all stages of the proceedings “where fundamentalfairness might be thwarted by the defendant’s absence.” (Faretta, supra, 422 U.S. at p. 816.) The California Constitution also provides the right to presence in criminal proceedings. (Cal. Const., art. I, § 15; People v. Concepcion (2008) 45 Cal.4th 77, 81 (Concepcion).) In addition to providing a right to confront opposing witnesses, the Sixth Amendmentprovides an accused with the rightto effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 664.) Moreover, eeethe constitutional right to due process requires ““‘a meaningful opportunity to present a complete defense.’ [Citation.]” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) This opportunity includes the rights to call witnesses and to present argument. (Chambers v. Mississippi (1973) 410 U.S. 284, 302; | Herring v. New York (1975) 422 U.S. 853, 858.) 2. Self-Representation The Sixth Amendment counsel clause guarantees criminal defendants (1) the right to be represented by an attorneyatcritical stages of the prosecution, and (2)the right to represent themselvesif they so elect. (Faretta, supra, 422 U.S. at p. 819; People v. Koontz (2002) 27 Cal.4th 1041, 1069 (Kooniz).) A valid waiver of the right to counsel encompasses(1) a determination by thetrial court that the defendant has the mental capacity to understand the proceedings and (2) a finding that the waiver is knowing and voluntary, which requires that the defendant understand the consequencesofthe decision and is not being coerced. (Godinez v. Moran (1993) 509 U.S. 389, 400-401 & fn. 12; Koontz, supra, 27 Cal.4th at pp. 1069-1070.) 21 “In order to make a valid waiver of the right to counsel, a defendant ‘should be made aware of the dangers and disadvantagesofself- representation, so that the record will establish that “he knows whatheis doing and his choice is made with eyes open.” [Citation.]’ (Faretta, supra, 422 US. at p. 835.) No particular form of words is required in admonishing a defendant who seeks to waive counsel andelectself- representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantagesof self-representation, including the risks and complexities of the particular case. [Citation.]” (Koontz, supra, 27 Cal.4th at p. 1070.) Appellant’s waiver of counsel was voluntary andintelligent underthat standard. He has never contended otherwise. 3. Trial in Absentia In Diaz v. United States (1912) 223 U.S. 442 (Diaz), the court upheld the conviction of a defendant whotwice verbally waived his right to be presentduring his trial. The court madeclearthat the prevailing rule allows continued trial upon the voluntary absence of a felony defendantnot heldin custody and not charged with a capital crime: “[W]here the offense is not capital and the accusedis not in custody, the prevailing rule has been, that if, after the trial has begunin his presence, he voluntarily absents himself, this does not nullify what has been doneor prevent the completion of the trial, but, on the contrary, operates as a waiverofhis right to be present and leaves the court free to proceed withthetrial in like manner and withlike effect as if he were present.” (/d. at p. 455.) Penal Code section 1043 encapsulatesthis principle. It provides in relevantpart: | (a) Except as otherwise providedin this section, the defendantin a felony case shall be personally presentatthetrial. (b) The absence of the defendantin a felony caseafter the trial has commencedin his presenceshall not prevent continuing 22 the trial to, and including,the return of the verdict in any of the following cases: (1) Any case in which the defendant, after he has been warned bythe judge that he will be removedif he continueshis disruptive behavior, nevertheless insists on conducting himself in a mannerso disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom. (2) Any prosecution for an offense which is not punishable by death in which the defendantis voluntarily absent. (c) Any defendant whois absent from a trial pursuant to paragraph (1) of subdivision (b) may reclaim his right to be presentat thetrial as soonas heis willing to conduct himself consistently with the decorum and respect inherentin the concept of courts and judicial proceedings. (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waivehis right to be present in accordance with Section 977. (Pen. Code, § 1043, subds. (a)-(d).) The Legislature enacted this statute “to prevent the defendant from intentionally frustrating the orderly processes ofhis trial by voluntarily absenting himself. A crucial question must always be, ‘Whyis the defendant absent?’ . . . It is the totality of the record that must be reviewed in determining whether the absence was voluntary.” (Connolly, supra, 36 Cal.App.3d at pp. 384-385.) Connolly adopted the test set forth in Cureton v. United States (D.C. Cir. 1968) 396 F.2d 671 (Cureton), for determining whether a defendant’s absencefromtrial is voluntary: “‘He must be aware of the processestaking place, of his right and ofhis obligation to be present, and he must have no sound reason for remaining away.’” (Connolly, supra, 36 Cal.App.3d at p. 384, quoting Cureton, supra, 396 F.2d at p. 676.) 23 Here, the trial court found that appellant “abandonedhistrial purposefully and that the purpose for which he chose to not cometotrial was evasion ofthe trial or avoiding penalty for the alleged crimes.” (11 RT 608.) Appellant did not challenge this factual finding in his motion for new trial or on appeal. Appellant clearly knew the proceedings were taking place as he wasattrial through the beginning ofthe presentation of evidence;he clearly knew ofhis right and obligation to be present; and he had no sound reason for staying away. | B. Penal Code section 1043 Applies to Absconding Pro Se Defendants In Taylor, supra, 414 U.S. 17, the defendant, who wasrepresented by counsel, attended only the beginningofhistrial before failing to appear for its remainder. Thedistrict court nonetheless conductedthetrial without him pursuantto rule 43 of the Federal Rules of Criminal Procedure, which provides that a defendant’s voluntary absence should not prevent continuingthetrial.” The jury convicted defendantonall counts. Defendant claimed on appeal that “his mere voluntary absence from his trial cannot be construed as an effective waiver, that is, ‘an intentional relinquishment or abandonmentof a knownrightor privilege,’ unlessit is demonstrated that he knew or had been expressly warnedbythetrial 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.” (Jd. at p. 19.) ? At present, rule 43(c) provides in part: “A defendant who was initially presentat trial, or who had pleaded guilty or nolo contendere, waivesthe right to be present under the following circumstances: [4] (A) whenthe defendantis voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain duringtrial.” 24 Taylor rejected that argument. The high court held that the lack of a warning wasnot problematic, finding it “wholly incredible”to believe suggest that the defendant, who wasat liberty on bail, had attended the openingsession ofhistrial, and had a duty to be presentat the trial, had any doubt abouthis right to be present at every stage ofhis trial. (Taylor, supra, 414 US.at p. 20.) The defendant had noright to interrupt the trial by his voluntary absence, as he implicitly conceded by arguing only that he should have been warnedthatno such right existed and that the trial would proceed in his absence. “The right at issueis the right to be present, and the question becomes whetherthatright was effectively waived by his voluntary absence.” (/bid.) Consistent with rule 43 and Diaz, supra, 223 U.S. 422, the court found that that it was. (Taylor, supra, 414 U.S.at p. 20.) The Taylor court further held that it lacked credibility to believe the defendant would not knowthat thetrial could continue in his absence: It seems equally incredible to us, as it did to the Court of Appeals,“that a defendant whoflees from a courtroom in the midst of a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not knowthat as a consequencethetrial could continue in his absence.” [Citation.] Here the Court of Appeals noted that when petitioner was questioned at sentencing regardinghis flight, he never contended that he was unawarethat a consequenceofhis flight would be a continuation ofthe trial without him. Moreover, no issue of the voluntariness of his disappearance was ever raised. As was recently noted, “there can be no doubt whateverthat the governmental prerogative to proceed witha trial may not be defeated by conduct of the accusedthat prevents the trial from going forward.” Illinois v. Allen, 397 U.S. 337, 349 (1970) [(Allen)] (BRENNAN,J., concurring). Under the circumstances present here, the Court of Appeals properly applied Rule 43 and affirmed the judgment of conviction. (Taylor, supra, 414 USS.at p. 20.) The high court in Taylor adopted as the “controlling rule” the Cureton test for determining whether a defendant’s absence from trial is voluntary— 25 that defendant be aware (1) of the processes taking place; (2) of his or her right and obligation to be present; and (3) that defendant has no sound reason for remaining away. (Taylor, supra, 414 U.S.at p. 19, fn. 3.) The court in Taylor did not apply the Cureton requirements to the facts because defendant did not allege that his absence was involuntary. (See id. at p. 20.) Theself-representedstatus of a voluntarily absent defendant does not change this rule. The point was recognized by the Court of Appealin People v. Parento (1991) 235 Cal.App.3d 1378 (Parento). There, a defendant who had previously chosento represent himself, requested the appointment of counseland a continuance onthe dayoftrial. (id. at p. 1380.) Thetrial court denied those requests, and the defendant refusedto participate further in the proceedingsand voluntarily absented himself from the trial. (/d. at pp. 1380-1381.) Thetrial court did not stop thetrial, however,andthe jury convicted the defendant. (/d. at p. 1380.) On appeal, defendantarguederrorin trying a self-represented accused in his absence and withoutthe appointmentofother counsel. (/bid.) The Court of Appeal rejected this claim. (/d. at pp. 1381-1382.) The Parento court recognizedthat a noncapital, self-represented defendantnot only has the right to conduct his defense by nonparticipation, but also hasthe right to absent himself from the proceedings. (Parento, supra, 235 Cal.App.3d at p. 1381.) The court noted that it is “well settled” that the right of a pro se defendantto represent himself or herself includes the right to decline to conduct any defense whatsoever. (id. at p. 1381.) The court noted next that in People v. Teron (1979) 23 Cal.3d 103 (Teron), 115, and in People v. McKenzie (1983) 34 Cal.3d 616 (McKenzie), this court foundnoerrorin rulings which allowed the defendantto represent himself even though he asked no questions ofwitnesses, presented no evidence, and madeonly a single objection in the courseofthetrial. 26 (Parento, supra, 235 Cal.App.3d at p. 1381, citing Teron, supra, 23 Cal.3d at pp. 110-111, 114-115; McKenzie, supra, 34 Cal.3d at p. 628-629.) ““The choice of self-representation preserves for the defendant the option of conducting his defense by nonparticipation. A competent defendanthas a 9399right to choose ‘simply not to oppose the prosecution’s case.’” (Parento, supra, 235 Cal.App.3d at p. 1381, quoting Teron, supra, 23 Cal.3d at p. 108.) “‘If the defendant chooses to defend himself by not participating in thetrial, he, unlike his attorney, is free to do so, but once this choiceis madehe cannotthereafter claim ineffective assistance of counsel as a basis for reversal on appeal.’” (Parento, supra, 235 Cal.App.3d at pp. 1381- 1382, quoting McKenzie, supra, 34 Cal.3d at pp. 628-626; accord, Faretta, supra, 422 U.S. at p. 835, fn. 46.) Parento concluded: Wesee no reasonto distinguish betweenthe situation, occurring in McKenzie, where a defendant exercises his rightof self- representation by being physically present but conducting no defense, and the situation occurring here, where the defendant chooses to exercise that right by physically absenting himself from the proceedings. The issue is not physical presence, but choice. There is no question but that a defendant’s right to effective counsel is violated if his attorney fails to attend the proceedings. Where a defendant has chosen to represent himself, however, he is entitled to conduct that defense in any mannerhe wishesshort of disrupting the proceedings, and thus is free to absent himself physically from trial. If, as here, that choice was voluntary, it will be respected. It followsthat a defendant whohasexercisedhis right of self-representation by absenting himself from the proceedings, may not later claim error resulting from that exercise. (People v. Parento, supra, 235 Cal.App.3d at pp. 1381-1382.) Numerousother courts agree that when a pro se defendant voluntarily absents himself from trial the court may proceed without appointing counsel for the absent defendant. (See Clark v. Perez (2d Cir. 2008) 510 F.3d 382, 397 [if defendant “faced trial without advantages guaranteed by 27 the Sixth Amendment,that was notbythetrial judge’s imposition, but by her own informed choice, whichthetrial judge was boundto respect”); Torres v. United States (2d Cir. 1998) 140 F.3d 392, 403 [finding noerror whenthetrial court failed to appoint an attorney to representa pro se defendant who had voluntarily absented herself from the proceedings in order to conduct political protest defense, because “the district court properly respected Torres’[s] decision and her right to choose that course”); United States v. Lawrence (4th Cir. 1998) 161 F.3d 250, 255 [““Because Lawrencewaspresent at the beginningofhis trial and voluntarily absented himself, there is no errorin this case’”’]; State v. Eddy (R.I. 2013) 68 A.3d 1089, 1106 [defendant voluntarily chose notto attendhistrial, and, as such, we do not believethat the trial justice was required to appoint counsel to represent him’’]; State v. Worthy (Minn. 1998) 583 N.W.2d 270, 280 (“Thetrial court did not abuse its discretion in not reappointing the dismissed attorneys as lead counsel when [defendants] voluntarily left the courtroom”); People v. Brante (Colo. App. 2009) 232 P.3d 204, 208-209 [“the trial court did not violate the defendant’s Sixth Amendmentright to counsel by declining sua sponte to appoint advisory counsel to take over the defense in his absence”’].) C. Any Claim that Appellant Did Not Know Trial Could Continue and, Thus, Did Not Knowingly and Intelligently Waive Trial Rights Is Forfeited and Incorrect The Court of Appeal distinguished Parento, supra, 235 Cal.App.3d 1378, and other cases cited above holding that trial may continue without appointing counsel after a pro se defendant voluntary absconds, based upon a “commoncritical fact: The defendants absented themselves on the record with the knowledge that the trial was proceeding without them.” (Typed Opn. at p. 15.) The Court of Appeal held that appellant did not knowingly and intelligently waive his right to presence becausethe record did not 28 show he absented himself knowingthat trial was going to proceed without him. As a result, the Court of Appeal continued, the record fails to support an inference that appellant made a voluntary and knowing waiveroftherest of “histrial rights, e.g., his confrontation rights.” (Typed Opn.at pp. 15-17 & fn. 7.) The claim that appellant lacked such knowledge wasitself forfeited. Appellant never argued that he lacked personal knowledgethattrial could continue in his absence. He anecdotally remarkedto 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.” (5 CT 984.) Tellingly, “cause” implies justified reason for a mistrial, not legal compulsion mandating it. Appellant also told the probation officer that he did not understand “how the proceedings continued without him being present in Court and he wouldlike this case to be considered a mistrial.” (5 CT 984.) That is not the same as claiming he was unawarethetrial could resumein his absence. In any event, the validity of a resumption oftrial when a pro se defendant abscondsis not an issue of express waiver—i.e., whether appellant knowingly and voluntarily waived fundamentaltrial rights, including the right to be present. It is a matter of implied waiver or forfeiture. While express waiver“is ordinarily an intentional relinquishment or abandonmentof a knownrightor privilege” (Johnsonv. Zerbst (1938) 304 U.S. 458, 464 (Zerbst), forfeiture is the failure to make the timely assertion of a right (United States v. Olano (1993) 507 U.S. 725, 731). “No procedural principle is more familiar to this Court than a constitutionalright,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make a timely assertion of the right before a tribunal having jurisdiction to determineit.” (/bid.) It is well established that the rationale for forfeiture is that in the hurly burly of 29 trial “many things may be, and are, overlooked which would readily have been rectified had attention beencalled to them. The law casts upon the party the duty of lookingafter his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in mostcasesbecareful to besilentas to his objections until it would be too late to obviate them, and the result would be that few judgments wouldstand the test of an appeal.” (People v. Saunders (1993) 5 Cal.4th 580, 590.) It thus follows that defendants can forfeit rights, including constitutionalrights, without ever making a knowing and intelligent decision to relinquish them. In Allen, supra, 397 U.S. 337, which held that a disruptive defendant may be excludedfromtrial, the United States Supreme Court did not concludethat Allen had expressly waived his right to be present; rather, he “lost his right” by reason of his behavior “of such an extreme and aggravatednature as to justify either his removal from the courtroom orhis total physicalrestraint.” (Jd. at p. 346.) In Concepcion, supra, 45 Cal.4th 77, 82-86, this court called Allen an implied waivercase, andrelied onthat _conceptin upholding the judgmentin the case beforeit, wheretrial was held in the defendant’s absence after he escaped. This court also quoted the following language from Diaz, supra, 223 U.S.442, 458, and Falk y, United States (D.C. Cir. 1899) 15 App.D.C. 446, 460-461: “Neither in criminalnorin civil cases will the law allow a personto take advantage of his own wrong. And yet this would be precisely whatit would doif it permitted an escape from prison, or an absconding from thejurisdiction while at large on bail, during the pendency ofa trial before a jury, to operate as a shield.’” (Concepcion, supra, 45 Cal.4th at p. 82.) Put differently, the defendant in Concepcion forfeited his right to be present through wrongdoing. Asdid appellant here. 30 Likewise, Parento properly analyzed the voluntary absence of a pro se defendantas a forfeiture. As the court stated: “It follows that a defendant who hasexercised his right of self-representation by absenting himself from the proceedings, may notlater claim error resulting from that exercise.” (Parento, supra, 235 Cal.App.3d at pp. 1381-1382.) By not permitting defendant “to claim error” after voluntarily absconding from trial, the Parento court applied the forfeiture doctrine. That ruling is correct and in compliance with the dignitary and self-determination principles underlying Faretta. No decision from the United States Supreme Court, or from this court, holds that a court may not proceed with trial of a voluntarily absent pro se defendant unless the defendant knew the trial would continue in his absence. The Court of Appeal below mistakenly stated that in Parento the defendant absented himself on the record with knowledge that the trial was taking place without him. (Typed Opn.at p. 15, citing Parento, supra, 235 Cal.App.3d at p. 1380, fn. 2.) In Parento, after the trial court denied the defendant’s requests for a continuance and appointmentof counsel, the defendanttold the court this: “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.” (/bid.) The defendant’s statement did not establish that he knowingly waivedparticularizedtrial rights like confrontation of witnesses or even an awarenessthatthetrial likely would proceed in his absence. It showed only that the defendant dared the court to proceed without him. Parento simply cannot be read as requiring an affirmative admonition ofrights subject to waiver and an express awarenessbya self-represented defendantthattrial will proceed before the court can proceed whenthe accused elects absence. The United States Supreme Court has decided that courts are entitled to impute knowledge to the represented absconding accusedthat the proceeding will continue in his or her absence: “midtrial flight” implies a 31 “knowing and voluntary waiverofthe right to be present.” (Crosby v. United States (1993) 506 U.S. 255, 261.) “It is unlikely... ‘that a defendant whoflees from a courtroom in the midstof a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not know that as a consequence the trial could continue in his absence.’ [Citations.]” (Ud. at p. 262.) It is similarly unlikely that a self-represented defendant, who has been given full and proper admonitions before choosing self-representation, which here included admonitions that there was not going to be another counsel present to provide assistance to appellant at trial and that the court was not obliged to provide any other counsel even if requested, would not know thattrial could continue in his absence. In all events, because appellant wasa self-represented defendant, he had an obligation to know and follow the law. It is undisputed that appellant made a voluntary andintelligent waiver of counsel at trial. The court provided appellant with ample time to review the Faretta waiver form. This form not only told appellant that he had the right to confront and cross-examineall the witnesses who would becalled to testify against him, but that it was necessary for him “‘to follow all of the many technical rules of criminal procedure, law, and evidence.” (1 CT 251, 253.) The court expressly told appellant: “You don’t get to file an appeal saying you had ineffective assistance of counsel because this is your choice.” (10 RT 482.) The court conducted a lengthy discussion with appellant regarding self-representation. After appellant read the waiver form and discussed the waiver with the court, he acknowledgedboth that he understood the hazards of self-representation and that he chose to proceed despite those hazards. He knew that there was no cocounsel and no standby counsel. He signed the Faretta waiver freely and knowingly. (1 CT 251; 10 RT 480-487, 492- 494.) As stated, by choosing to represent himself, appellant was obligated 32 to follow all court rules and procedures as his own attorney. Asa self- represented defendant, he necessarily had to be presentfortrial to represent himself at the trial. By claiming that he did not knowtrial could take place in his absence andthusthetrial court erred in conductingthe trial in his absence, appellant, as a self-represented defendant, essentially asks for relief for failing to know the law. Put another way, appellant is improperly claiming that he provided himself ineffective assistance of counsel. A pro se defendant who voluntarily absents himself from trial with the purpose of disrupting the proceedings forfeits the right to claim error in conductingthe trial in absentia. That rule properly allocates the risk of the defendant’s misbehavior, and it protects society’s interest in the proper administration of criminaljustice. D. When the Pro Se Defendant Voluntarily Absconds the Trial Court Is Not Constitutionally Obligated to Appoint Counsel The record establishes that appellant manipulated the trial court into a quandary. By virtue of appellant’s abandonmentoftrial, the court had to choose between: (1) overriding appellant’s recent, strongly-expressed exercise of his right to self-representation and hazard reversal per se by appointing counsel when appellant had notretracted his Faretta waiver; or (2) rewarding appellant’s efforts to delay the proceedings by declaring a mistrial, and ensuring a claim of double jeopardy when he had not consented to the jury’s discharge; or (3) conductingthe trial in absentia and subjecting that decision to appellate challenge. The Court of Appeal stated that althoughit sympathizedwith thetrial court in this case, and “recognize[d] the difficulties of trying obstreperous defendants,the benefit of hindsight showsthe court had options apart from mistrial” or proceeding in appellant’s absence. (Typed Opn.at p. 18.) The Court of Appeal identified three options other thantrial in absentia from which it said the 33 court should have chosen: (1) the court could have appointed standby counselsolely to observe the proceedings, then could have appointed standby counsel to represent appellant after he failed to appear; (2) the court could have simply reappointedthe discharged counselfor appellant after he failed to appear; or (3) the court could have warned appellant during the Faretta hearingthat the trial would continue without him if he voluntarily absented himself and that his doing so would result in a waiver ofhis trial rights. (Typed Opn.at pp. 18-19.) The court’s “options,” particularized though they are to absconding Faretta defendants, place new and unnecessary burdens ontrial courts conducting criminaltrials of self-represented defendants, and are neither constitutionally nor statutorily required. Indeed, any form of nonstatutory “options”like those envisioned by the Court of Appeal is unworkable. Trial courts with the foresight to anticipate that a pro se defendant might abscond could,in theory, admonish the defendantanticipatorily that numerousconstitutional rights such as presence and confrontation would be “waived”or “forfeited”if the defendantfailed to appearat trial. But that would certainly guarantee weighty claimsthat the proceedings wherein the accused sought pro se status had been infected by coercive circumstances and misunderstandings about what, precisely, the accused thought he was waiving aside from representation by counsel. In theory, the court might appoint standby counsel. But a Faretta waiver, by definition, meansthe right to counselis waived, and,thus, standby counselis discretionary. There is, of course, no guarantee that a particular pro se defendant would cooperate with standby counsel—even one simply observing—assumingany counselis available. The present record doesnotestablish that any counsel was ready and willing to act as standby counsel. 34 Andif the court elected neither of those options, it would have to find and appoint new counselwilling to undertake representation of the absent pro se defendant midtrial. If no attorney were available (or willing to take over a case midtrial withlittle or no preparation), that might well result in a mistrial—causing the delay and, perhaps, the termination ofjeopardy the pro se meantto procure by abandoningtrial. Here, hadthetrial court reappointed appellant’s discharged counsel, Mr. Camperi, after appellant failed to appear, appellant surely would have challenged that ruling on appeal with the claim that that action violated his right to self-representation. The state may not “force a lawyer upon [a defendant], even whenheinsists that he wants to conduct his own defense.” (Faretta, supra, 422 U.S.at p. 834.) A trial court’s erroneousdecision to revokeself-representation is reversible per se. Revoking appellant’s pro per status would have contradicted appellant’s recently expressed desire for self-representation, made with the knowledge he likely would not receive another attorney. Thetrial court also would have been required to make this decision without consulting appellant, further heightening the possibility for error. (/d. at p. 820 [“The languageandspirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment,shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendantandhis right to defend himself personally”].) The Court of Appeal concludedthat, since appellant never waived his constitutionaltrial rights to presence and confrontation before he absconded, and thetrial court neither appointed a standby counsel totake over, nor appointed substitute counsel after appellant absconded,thetrial court’s jurisdiction to proceed with trial, in effect, lapsed. The appellate court’s finding of structural error in proceeding to judgmentis a holding 35 that notwithstanding appellant’s valid Faretta waiver,trial in absentia resulted in a complete denial of the right to counsel. That ruling conflicts with Zerbst, supra, 304 U.S. 458. There the Supreme Court held a valid waiver of the assistance of counsel removesthe constitutional right to an attorney as a jurisdictional barrier to judgmentin criminal cases: “Since the Sixth Amendmentconstitutionally entitles one charged with crimeto the assistance of counsel, compliance with this constitutional mandateis an essential jurisdictional prerequisite to a federal court’s authority to deprive an accusedofhislife or liberty. When this right is properly waived,the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence.” (id. at pp. 467-468.) Nobarrierto trial existed below in this case, structural or otherwise, becausethe jurisdictional barrier of the Sixth Amendment right to counsel was removedby appellant’s Faretta waiver. Thetrial court in this case did noterr in invoking Penal Codesection 1043, subdivision (b) and conducting appellant’s trial in absentia. II. THE TRIAL COURT DID NOT ABUSEITS DISCRETIONIN CONDITIONING THE GRANT OF APPELLANT’S FARETTA MOTION ON APPELLANT RECEIVING NO CONTINUANCE Thetrial court refused appellant a one-day continuance before, as opposed to after, granting his Faretta motion. Indeed, the trial court did not grant appellant’s Faretta motion until appellant was fully admonished, had executed a waiver form, and had decided to waive the right to counsel notwithstanding the court’s denial of a continuanceofthe jury trialin progress, specifically a request for a one-day continuance, during the colloquy in the Faretta hearingitself. (See ante, at pp. 4-9.) The Court of Appeal stated thatthe trial court had engaged “in a ‘sudden about-face’” whenit granted appellant’s Faretta motion after denying other Faretta motions on the ground appellant was not prepared to 36 proceedto trial. (Typed Opn.at p. 21.) Actually, the trial court consistently ruled that it would not grant appellant’s untimely Faretta motionsif appellant required a continuanceto represent himself. The court granted appellant’s Faretta motion while trial was in progress and only after the court explicitly conditioned the grant of the motion on appellant’s readiness to resumethetrial in progress since the previous day. (10 RT 480-487, 492-494.) The Court of Appeal also stated that it was settled law that although a trial court may deny an untimely Faretta motion on the ground that granting the motion would involve a continuance for preparation, the rationale of that doctrine requiresthat if the trial court grants the untimely motion, it must then grant a reasonable continuance for preparation by the defendant. (Typed Opn.at p. 22.) The Court of Appeal relied on language in People v. Maddox (1967) 67 Cal.2d 647 (Maddox), People v. Fulton (1979) 92 Cal.App.3d 972 (Fulton), and People v. Bigelow (1984) 37 Cal.3d 731 (Bigelow). Those decisions hold or suggest the grant of an untimely motion for self-representation obligates a court to grant a reasonable continuance for preparation by the defendant. (Typed Opn.at pp. 19-23.) In People v. Clark (1993) 3 Cal.4th 99, 110 (Clark), and People v Jenkins (2000) 22 Cal.4th 900, 1039-1040 (Jenkins), this court explained that a trial court has discretion to condition the grant of a late Faretta motion on the defendant’s agreementthat there will be no delay in the proceedings. Maddox, Fulton, and Bigelow predate this court’s decisions in Clark and Jenkins. This court in Clark acknowledged the earlier Bigelow and Maddox decisions required a continuance whenevera court grants an untimely Faretta motion, but it held those cases are not controlling where, as here,the trial court makesclear its intent to deny a Faretta motion ifa continuance would be necessary. (Clark, supra, 3 Cal.4th at p. 110.) 37 Morerecently, in People v. Valdez (2004) 32 Cal.4th 73 (Valdez), this court held that the trial court acted within its discretion by conditioningthe granting of a Faretta motion, made “moments before jury selection wasset to begin,” on the defendant’s agreementthatthe trial would not be delayed. (/d. at pp. pp. 102-103.) This court reasonedthata trial court’s authority to deny a Faretta motion on the groundthatit is untimely necessarily includes the authority to condition the grant of the motion on the defendant’s agreementthat a grant of the motion would notresult in delay. (Id. at p. 103.) Again, that is this case. The trial court reasonably refused to grant appellant’s Faretta motions when he stated he wanted a “one-day” continuance before he would proceed without counsel. Thetrial court did not grant appellant’s Faretta motion until after appellant clearly understood he would not obtain a continuance by reason of self-representation. (10 RT 480-487, 492-494.) Given the extensive pretrial delay in the case, appellant’s documented history of manipulation, and the fact that jury selection was in progress, the trial court plainly did not abuseits discretion—thatis, rule unreasonably— in conditioning the grant of appellant’s Faretta motion on there being no further delay as a result of its granting the motion. (People v. Valdez, supra, 32 Cal.4th at p. 103.) 38 CONCLUSION The judgment of the Court of Appeal should be reversed. Dated: June 23, 2015 BOver SF2015200080 20750473 .docx 6/23/15 Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Acting Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General RENE A. CHACON Supervising Deputy Attorney General BRUCE ORTEGA () Deputy Attorney Gereral Attorneys for Respondent f 39 CERTIFICATE OF COMPLIANCE I certify that the attached OPENING BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 11,852 words. Dated: June 23, 2015 KAMALA D. HARRIS Attorney“ BRUCE ORTEGA I neralDeputy Attorney Attorneysfor Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Espinoza, Jr. No.: §224929 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On June 23, 2015, I served the attached OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Lawrence A. Gibbs Sixth District Appellate Program Attorney at Law Attn: Executive Director P.O. Box 7639 100 North Winchester Blvd., Suite 310 Berkeley, CA 94707 Santa Clara, CA 95050 (2 copies) The Honorable Jeffrey F. Rosen Clerk, California Court of Appeal District Attorney Sixth Appellate District | Santa Clara County District Attorney’s 333 West Santa Clara Street, Suite 1060 Office San Jose, CA 95113 70 W. Hedding Street San Jose, CA 95110 County of Santa Clara Criminal Division - Hall of Justice Superior Court of California Hall of Justice San Jose, CA 95113-1090 I declare under penalty of perjury under the laws ofthe State of California the foregoingis true and correct and that this declaration was executed on June 23, 2015, at San Francisco, California. E. Rios -. Bia Declarant Signature SF2015200080 2075 1322,doc