FILED 


FEB 20,2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DMSION THREE 


STATE OF WASHINGTON, ) 

) No. 30665-8-III 

Respondent, ) 

) 

v. ) 

) 

MARIO ALAN COBARRUVIAS G, ) PUBLISHED OPINION 

) 

Appellant. ) 

KORSMO, C.J. - Appellant Mario Cobarruvias failed to appear for the final day of 

his trial after accompanying his son to the hospital. We conclude that the trial court erred 

in denying the defendant's motion for a new trial. We reverse and remand for a new trial. 

FACTS 

Mr. Cobarruvias eventually was charged with two counts ofdelivery of 

methamphetamine to a police informant. Both charges were alleged to have occurred in 

February 2009. A trial later that year ended in a mistrial after the jury deadlocked. Mr. 

Cobarruvias testified on his own behalf at that trial. 

After a series ofcontinuances, the matter proceeded to trial for the second time in 

January 2012. Mr. Cobarruvias was permitted to remain out of custody pending trial. 
No.30665-8-III 

State v. Cobarruvias 

The trial did not run smoothly due to factors beyond the control of the court. The jury 

was selected on Monday, January 9, and the case was recessed until January 12. That 

morning, however, the prosecutor needed to seek medical attention for an emerging 

health issue; the case was recessed to the afternoon. The prosecutor was unable to 

continue due to the health matter. The case was recessed again over a holiday weekend 

until Tuesday, January 17. 

The prosecutor's co-counsel conducted the trial. Mr. Cobarruvias did not appear 

on time and the court indicated it would allow him 15 additional minutes before 

authorizing a bench warrant after defense counsel argued that his client had traditionally 

been arriving five minutes late. He appeared within the 15 minute window. The 

following day, January 18, Mr. Cobarruvias was again late. His counsel admitted to 

stalling the court in the hope that his client would make it before testimony resumed. Mr. 

Cobarruvias soon did arrive and attributed his tardiness to the weather conditions and a 

long line at the security station. 

The judge and counsel conferred briefly that afternoon to discuss the schedule for 

the remaining witnesses. Defense counsel at that point indicated that he was uncertain 

whether or not his client would testify. 

The beginning oftrial on the 19th was delayed until 9:30 a.m. for defense 

counsel's emergency dental work. Trial could not resume on Friday the 20th due to bad 

weather, so the final day of trial was extended to Monday January 23. 

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No.30665-8-II1 

State v. Cobarruvias 

Mr. Cobarruvias did not appear at 9:00 a.m. that morning along with the rest of the 

participants. At 9:28 a.m., the court noted that road conditions were fine and that Mr. 

Cobarruvias had a history of being late. The court concluded that the defendant was 

voluntarily absent. Testimony continued; Mr. Cobarruvias still did not appear. 

The State rested its case after prosecuting two final witnesses. The defendant still 

had not appeared and defense counsel asked for permission to submit his testimony from 

the previous trial. The court denied the motion due to the voluntary absence. A man in 

the audience, whom counsel later identified as the defendant's brother, stated that he had 

been able to locate Mr. Cobarruvias. After conferring with the man, defense counsel 

advised the court that it was believed Mr. Cobarruvias had taken his young son to the 

hospital. The information was contained in a note found by the brother at the defendant's 

house. 

Defense counsel then asked to continue the case to the afternoon so that he could 

attempt to ascertain his client's whereabouts and bring him in to testify. The court denied 

the motion and the defense rested without presenting any witnesses. It was 

approximately 11 :30 a.m. The parties then presented argument over the noon hour before 

turning the case over to the jury. 

The jury returned its verdicts at approximately 1 :30 p.m., finding the defendant 

guilty of one count of delivery of methamphetamine and acquitting him on the second 

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No.30665-8-III 

State v. Cobarruvias 

count. The jury also found that the delivery occurred within 1,000 feet of a school zone. 

The defendant was arrested at the hospital between 2:00 and 2:30 p.m. that day. 

The defense moved for a new trial and documented the defendant's activities 

addressing his son's medical condition on January 23. After hearing argument, the court 

denied the motion, noting that the defendant made no effort to contact his counsel or the 

court, and the nature ofthe son's illness did not prevent him from doing so. The court 

concluded that the absence was voluntary. 

The court imposed a standard range sentence. Mr. Cobarruvias then timely 

appealed to this court. 

ANALYSIS 

Mr. Cobarruvias challenges the court's initial determination that he was 

voluntarily absent and the denial of his motion for a new trial. We agree with that second 

contention and reverse and remand for a new triaL I 

Issues arising from a criminal defendant's absence after trial has started have been 

addressed in several published cases in this state. A criminal defendant has the right to 

be present at trial-this right derives from basic due process of law and the defendant's 

right to confront witnesses against him under both the state and federal constitutions. See 

I We therefore do not address his arguments concerning the judgment and 

sentence. We do, however, grant the December 10 motion to supplement the clerk's 

papers in this case. 

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No. 30665-8-111 

State v. Cobarruvias 

generally State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994). This right can 

be waived by a voluntary absence after trial has commenced. Id. 

To determine whether a voluntary waiver has occurred, the trial court must follow 

a three-part process to evaluate the totality of the circumstances, including: 

"(1) ... sufficient inquiry into the circumstances of a defendant's 

disappearance to justify a finding whether the absence was voluntary, 

(2) ... a preliminary finding ofvoluntariness (when justified), and (3) 

[afford] the defendant an adequate opportunity to explain his absence when 

he is returned to custody before sentence is imposed." 

Id. at 881 (quoting State v. Washington, 34 Wn. App. 410,414,661 P.2d 605 (1984)). 

When there is a voluntary waiver, the trial judge has discretion to continue with the trial 

"without further consideration." Id. Thomson also noted that there is a presumption 

against waiver. Id. The presumption against waiver applies to all three prongs of the 

Thomson test. State v. Garza, 150 Wn.2d 360, 367-68, 77 P.3d 347 (2003). It "must be 

the overarching principle throughout the inquiry." Id. at 368. 

Garza also determined that the trial court's waiver determination is a factual issue 

to which the abuse of discretion standard applies on review. Id. at 366. Discretion is 

abused when it is exercised on untenable grounds or for untenable reasons. Id. Use of an 

incorrect legal standard in making a discretionary decision also constitutes an abuse of 

discretion. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). The decision 

to grant or deny a motion for a new trial also is reviewed for abuse of discretion. State v. 

Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997). 

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No. 30665-8-III 

State v. Cobarruvias 

Thomson and Garza demonstrate how these standards have been applied in 

practice. In Thomson, the named defendant was tried with a codefendant. 123 Wn.2d at 

878. On the second day of pretrial hearings, Mr. Thomson called the court to say he 

would be late due to car problems. The hearings proceeded without him and he 

eventually arrived at an unspecified time that morning. Id. at 879. Jury selection began 

that afternoon and the case was recessed for four days. Mr. Thomson did not appear on 

the morning the trial resumed; his counsel told the court that Thomson had called and left 

word with the attorney's secretary that he had a medical emergency that would prevent 

him from being in court that day. No further information was provided and there was no 

way to contact Mr. Thomson. Id. 

The trial court allowed defense counsel a brief recess to attempt to locate his 

client. When that effort failed, the court issued a bench warrant and recessed the case 

until 1 :30 p.m. Id. Mr. Thomson was still absent at that time and the court concluded 

that he was voluntarily absent. Jury selection resumed and trial continued over defense 

objection. Id. 

The following day, Mr. Thomson still was not present and had not contacted his 

counsel, the court, or his mother (with whom he lived). Defense counsel sought a 

continuance. The motion was denied and trial continued. The jury returned a gUilty 

verdict against both defendants. Later that day, Mr. Thomson contacted his attorney and 

learned ofthe verdict. Id. He surrendered on the warrant. Id. 

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No.30665-8-II1 

State v. Cobarruvias 

Thomson apologized at sentencing but apparently did not further explain his 

absence. [d. at 880. He appealed and this court affirmed the conviction. [d. The 

Washington Supreme Court then granted review and announced the standards applicable 

to the situation of a defendant who absented himself after trial had begun. [d. at 881. In 

its application ofthe three-part analysis, the court concluded that the trial judge had not 

abused his discretion in finding that Thomson's absence was voluntary. [d. at 884. 

Thomson did not address the final prong of the analysis, probably because the 

defendant did not attempt to justity his absence once he returned to court. That portion of 

the analysis was discussed, however, in Garza. There, the defendant had regular 

attendance problems. He was three hours late for a pretrial hearing. He then was 45 

minutes late for the first day of trial and received a warning from the judge about further 

tardiness. Garza, 150 Wn.2d at 363. Mr. Garza did not appear for the last day of trial. 

His counsel advised the court that his client had told him he was running late and would 

be there by 9:20 a.m. [d. at 364. When the defendant still had not appeared by 9:25 a.m., 

the trial judge found him to be voluntarily absent and directed that the trial continue 

without him. Defense counsel checked with his office at 10:00 a.m.; no new information 

had been received. At 11 :00 a.m., the judge issued a bench warrant. [d. 

Trial concluded that day with a jury determination that the defendant was gUilty. 

On June 26, the defense filed a motion for a new trial and explained that the defendant 

had been arrested on an outstanding Bothell municipal warrant while en route to his trial. 

7 

No. 30665-8-111 

State v. Cobarruvias 

Id. Mr. Garza allegedly told the jail to alert King County that he could not "make it in." 

Id. No call was ever made, nor did Mr. Garza make further efforts to contact the court or 

counsel. He was released from jail that evening. Id. The trial judge denied the motion, 

deciding that the arrest on an outstanding warrant still constituted a voluntary absence. 

Id. at 365. 

The Washington Supreme Court reversed and ordered a new trial. It found that 

waiting five minutes2 on the final day before finding the absence to be voluntary 

constituted an abuse of discretion in light of the presumption against waiver. Id. at 369. 

The trial court could not make a determination ofvoluntariness "without reference to the 

presumption against waiver." Id. 

The Supreme Court also addressed the effect of incarceration on the voluntariness 

inquiry. It commented upon, although it did not decide the adequacy of, Mr. Garza's 

attempt to contact the court about his incarceration. Id. at 370-71. The court did indicate 

that an incarcerated defendant "must show that he or she genuinely tried but failed to 

contact the court." Id. at 370. The reasonableness ofthat effort determines whether or 

not the original voluntariness determination stands. Id. 

We have discussed these two cases in some detail as both have an impact on this 

case. As in Garza, both Mr. Cobarruvias and Mr. Garza had regular difficulties 

2 The court apparently was counting the time between the finding of voluntary 

absence and the expected arrival time rather than the opening of that day's court session. 

8 

No.30665-8-III 

State v. Cobarruvias 

appearing for trial in a timely fashion, although Mr. Garza alerted his counsel about his 

final delayed appearance while Mr. Cobarruvias did not. The Garza court treated the 

telephone call as a significant indicator that Mr. Garza's absence might not be voluntary. 

Id. at 369. At a minimum, it suggested that more time was needed to investigate the 

situation before declaring the absence voluntary. Id. 

In contrast, Mr. Cobarruvias never attempted to alert counselor the court when he 

expected to be tardy. On these facts, we think the trial court could consider his "body of 

work" on the tardiness issue. This was not a mere 30 minute unexplained absence (at the 

time of the voluntariness finding), but rather the latest episode in a spotty attendance 

record. We do not read Garza as ruling that some minimum period of time must pass 

before an absence can be addressed or that a history of tardiness is less egregious than a 

single episode. The trial court had a sufficient basis for initially finding that the 

unexplained absence on the final day of trial was voluntary. 

Nothing that developed during the day changed the situation. The defendant made 

no efforts to contact his counselor the court. Defense counsel eventually relayed a 

hearsay report that the defendant had left a note in his own home concerning the hospital 

visit. While the court could have granted a delay to allow further investigation, it was not 

required to do so. In the absence of any attempt by the defendant to convey information 

to the court, Thomson and Garza indicate that the trial judge acted within his discretion in 

permitting the case to continue to its conclusion in the defendant's absence. 

9 

No.30665-8-II1 

State v. Cobarruvias 

However, it was a different story once the defendant had been apprehended and 

put forth his explanation. As in Thomson, the basis for the defendant's absence was 

medically related. Unlike that case, Mr. Cobarruvias documented his situation. The 

defendant having come up with a reasonable explanation for his absence, Garza required 

the trial court to then consider that explanation in light of the presumption against waiver. 

150 Wn.2d at 368. Unfortunately, that was not done here. 

The trial court carefully considered the motion and explained its reasoning at some 

length. The court determined that Mr. Cobarruvias had not shown that he was unable to 

make contact with the court or counsel, nor had he shown that his obligations as a father 

left him too pressed for time to attempt telephone contact. Under the circumstances, the 

court concluded that the defendant's absence was voluntary. He had chosen to take his 

son for medical attention and chosen to stay with him while he was being treated. We 

agree with the trial court that given the defendant's limited evidentiary showing, it was 

reasonable to conclude that the absence was voluntary given the lack of effort to contact 

the court and the lack of evidence that his presence at the hospital was medically 

necessary. 

Nonetheless, despite the careful consideration given the motion, we believe the 

trial court erred in not expressly considering the defendant's showing in light of the 

"overarching" presumption against waiver. Neither Thomson nor Garza dealt with the 

application ofthe presumption to the third prong of the Thomson test. In Thomson, the 

10 

No. 30665-8-111 

State v. Cobarruvias 

issue did not arise due to lack of a defense argument for a new trial, while in Garza the 

court overturned the judgment based on the initial voluntariness ruling (prong one ofthe 

Thomson test). Although the Garza court went on to comment on both the effect of 

incarceration on the voluntariness ruling and the defendant's obligation to attempt contact 

with the court, 3 it never applied the presumption to the reasonableness of defendant's 

efforts because it did not need to do so. Thus, we cannot read its discussion of an 

incarcerated defendant's obligation to contact the court as an absolute bar to the trial 

court's consideration of defendant's explanation for his absence. 

Here, the court needed, but failed, to consider the presumption in its assessment. 

The presumption requires more than that the court simply listen to the defendant's 

explanation. It then must consider the absence question anew starting with the 

presumption against voluntary waiver. As applied here, that would mean the court must 

determine what actually happened and assess the reasonableness ofthe defendant's 

actions4 on the final day while also considering other facts such as Mr. Cobarruvias's 

absences throughout the trial and the initial failure to explain his absence, and ultimately 

3 Both ofthese aspects ofthe opinion can technically be considered dicta in light 

ofthe court's disposition ofthe case. That characterization, however, plays no role in our 

resolution ofthis case. 

4 It is at this point that a parent's role as a medical decision maker for a minor 

child would factor into the necessity for Mr. Cobarruvias's actions. Likewise, the court 

could consider his ability and failure to attempt contact with the court in assessing the 

reasonableness of his behavior that day. 

11 

No. 30665-8-111 

State v. Cobarruvias 

decide whether it believed the defendant's absence on the final day was a voluntary 

decision. 

Although the trial court here did consider the totality of the circumstances, we 

cannot determine where it started its analysis. Did it begin anew with consideration of 

the presumption against voluntary waiver, or did it begin with its (well supported) 

original determination ofvoluntariness and weigh that against the reasonableness of the 

defendant's actions? As it is unclear whether the court applied the appropriate test, we 

conclude that it abused its discretion in denying the motion for a new trial. Rundquist. 

The judgment is reversed and the case remanded for trial. 

Korsmo, C.J. 

WE CONCUR: 

Brown, J. 

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