(1) Did the trial court err in ruling that defendant’s overdose on heroin during his jury trial was an implicit waiver of his right to be present and made him voluntarily absent within the meaning of Penal Code section 1043, subdivision (b)(2)? (2) Did the trial court err in denying the defense motion for a one-day continuance to permit defendant to testify?

Held:

A criminal defendant has a constitutional right to be present at trial. Yet, once trial has commenced in the defendant’s presence in a noncapital felony case, the trial court may continue the trial in the defendant’s absence under Penal Code section 1043, subdivision (b)(2) (hereafter section 1043(b)(2)), provided that the absence is voluntary. We granted review in this matter to decide whether the Court of Appeal erred when it upheld the trial court’s finding that defendant Marcos Antonio Ramirez was voluntarily absent under section 1043(b)(2).

[¶¶]

A trial court must assess the totality of facts when determining whether a defendant is voluntarily absent under section 1043(b)(2). A defendant’s absence from trial due to drug use is not per se voluntary for purposes of section 1043(b)(2). Rather, it is among the relevant circumstances that a trial court must consider when it decides whether a defendant has voluntarily absented himself or herself from trial. To the extent the trial court’s ruling or the Court of Appeal’s decision suggests that a defendant who ingests illicit drugs and subsequently seeks medical attention is voluntarily absent as a matter of law, we disagree with this proposition.

Nevertheless, we hold that substantial evidence supports the trial court’s finding of voluntary absence under the circumstances. In Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996 [266 Cal. Rptr. 3d 329, 470 P.3d 41], we explained that when an appellate court reviews a finding that a fact has been proved by clear and convincing evidence, an intermediate standard of proof, the reviewing court evaluates “whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.” Assuming without deciding that we employ this heightened review to the trial court’s determination that defendant’s voluntary absence was clearly established, we conclude that the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that defendant was voluntarily absent. Because the Court of Appeal upheld the trial court’s determination that defendant had voluntarily absented himself from trial under section 1043(b)(2), we affirm the judgment of the Court of Appeal.

(People v. Ramirez (2022) 14 Cal.5th 176.) This case was decided on 12/5/2022.

Review on this issue was also granted with briefing deferred in:

• People v. Yates (Jan. 25, 2022, E075152) [nonpub. opn.], review granted 3/30/2022 (S273316)
• People v. Olivera (F081186) [nonpub. opn.], review granted 9/14/2022 (S275031)