Skip to content
Name: People v. Concepcion
Case #: S146288
Court: CA Supreme Court
District CalSup
Opinion Date: 10/27/2008

For purposes of Penal Code section 1043, subdivision (b)(2), which allows a non-capital trial to continue in the defendant’s absence, if he was present when trial started, but then voluntarily fails to appear, the period of voluntary absence spans the time of escape from custody through the time it reasonably takes to return him to court after apprehension. Appellant escaped from custody after the jury was sworn, but before opening statements were presented. Several hours later, police informed the court that appellant had been arrested, but that he could not be returned to court until the next morning. The afternoon trial proceedings were held in appellant’s absence. Appellant argued, and the Court of Appeal agreed, the trial court should not have resumed the trial because his absence stopped being voluntary the moment he was apprehended. The Supreme Court reversed. Such a rigid rule as applied by the appellate court “would blind the courts to the totality of the circumstances, which may vary widely.” It would ignore the fact that the absence was caused by the defendant’s own misconduct. A defendant cannot reasonably insist that the system instantaneously accommodate him once his escape plans go awry. Moreover, in this case, the defense never complained to the trial court that return was unreasonably delayed.