### FILED FEB20,2014 In the Office oftheClerkofCourt W A StateCourtofAppeals, Division III

INTHECOURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE STATE OF WASHINGTON, ) 

### ) No. 30665-8-III Respondent, 

### ) ) 

### v. ) ) MARIOALAN COBARRUVIAS G, 

### ) PUBLISHED OPINION 

### ) Appellant. ) KORSMO, C.J.

- AppellantMario Cobarruvias failed to appear for the final day of his trial after accompanying his sontothehospital. We concludethatthe trial courterred in denying the defendant's motion for a new trial. We reverse andremandfor a newtrial. FACTS Mr. Cobarruvias eventuallywas chargedwithtwo counts ofdelivery of methamphetamineto a police informant. Both charges were allegedtohave occurred in February 2009. A trial laterthatyearended in a mistrial afterthejurydeadlocked. Mr. Cobarruviastestified onhis ownbehalfatthat trial. Aftera series ofcontinuances, the matterproceededtotrial for the secondtime in January 2012. Mr. Cobarruvias waspermittedtoremain outofcustodypendingtrial.

### No.30665-8-III State 

### v. Cobarruvias


### The trial did not run smoothly due to factors beyond the control ofthe court. Thejury

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. Theprosecutor's co-counsel conducted the trial. Mr. Cobarruvias did not appear
on time and the court indicated itwould 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 admittedto 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. Thejudge and counsel conferredbriefly that afternoon to discuss the schedule for the remaining witnesses. Defense counsel at thatpoint indicated that he was uncertain whether or not his clientwould 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 oftrial was extended to Monday January 23. 

### 2No.30665-8-II1 

### State 

### v. Cobarruvias

Mr. Cobarruvias did not appear at 9:00 a.m. that morning along with the rest ofthe participants. At 9:28 a.m., the court noted that road conditions were fine and that 

### Mr. Cobarruvias had a history ofbeing late. The court concluded that the defendant was voluntarily absent. Testimony continued; 

### Mr. Cobarruvias still did not appear. The State rested its case afterprosecutingtwo final witnesses. The defendant still had not appeared and defense counsel asked for permissionto submithis testimony from the previous trial. The court denied the motion due tothe voluntary absence. A man in the audience, whom counsel later identified as the defendant's brother, statedthat he had been able to locate Mr. Cobarruvias. After conferring with the man, defense counsel advisedthe courtthat it was believed Mr. Cobarruvias hadtaken his young sontothe hospital. The information was contained in a note found bythe brother at the defendant's house. Defense counsel then asked to continuethe casetothe afternoon so thathe 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. Theparties then presented argument overthe noon hour before turningthe case overtothejury. Thejuryreturned its verdicts at approximately 1:30 p.m., finding the defendant guilty ofone count ofdelivery ofmethamphetamine and acquitting him on the second

3

### No.30665-8-III State 

### v. Cobarruvias



### count. Thejury also found thatthe delivery occurred within 1,000 feet ofa 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 contacthis counsel or the court, and the nature ofthe son's illness did notpreventhim from doing so. The court concluded that the absence was voluntary. The court imposed a standard range sentence. Mr. Cobarruvias then timely appealedto this court. ANALYSIS 

### Mr. Cobarruvias challenges the court's initial determination that he was voluntarily absent and the denial ofhis 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 aftertrial has startedhave been addressed in several published cases in this state. A criminal defendant has the rightto bepresent at trial-this right derives from basic due process oflaw 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 thejudgment and sentence. We do, however, grant the December 10 motion to supplement the clerk's papers in this case. 4No. 30665-8-111 

### State 

### v. Cobarruvias generallyState 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 courtmust follow

a three-partprocess to evaluate the totality ofthe circumstances, including: "(1)
... sufficient inquiry into the circumstances ofa defendant's disappearance tojustify a finding whether the absence was voluntary, (2)
... a preliminary finding ofvoluntariness (whenjustified), 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 trialjudgehas 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 ofthe 

### Thomson test. 

### State v. 

### Garza, 150 Wn.2d 360, 367-68, 77 P.3d 347 (2003). It "mustbe 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 ofdiscretion standard applies onreview. 

### Id. at 366. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. 

### Id. Use ofan 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 ofdiscretion. 

### State v. 

### Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997). 5

### 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 ofpretrial hearings, Mr. Thomson calledthe courtto say he would be late due to carproblems. The hearings proceeded without him andhe 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 courtthat Thomson had called and left word with the attorney's secretary that he had a medical emergency thatwould 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 briefrecess to attempt to locate his client. When that effort failed, the court issued a bench warrant andrecessed 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 contactedhis counsel, the court, orhis mother (with whomhe lived). Defense counsel sought a continuance. The motion was denied and trial continued. Thejuryreturned a gUilty verdict against both defendants. Later that day, Mr. Thomson contactedhis attorney and learned oftheverdict. Id. He surrendered on the warrant. Id. 6No.30665-8-II1 

### State v. 

### Cobarruvias

Thomson apologized at sentencing but apparently did not further explain his absence. [d. at 880. He appealed andthis court affirmed the conviction. [d. The Washington Supreme Courtthen granted review and announced the standards applicable to the situation ofa defendant who absented himselfafter trial had begun. [d. at 881. In its application ofthethree-part analysis, the court concluded that the trialjudge had not abused his discretion in finding that Thomson's absence was voluntary. [d. at 884. 

### Thomson did not address the final prong ofthe analysis, probably becausethe defendant did not attempt tojustityhis absence once he returned to court. Thatportion 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 oftrial and received a warning from thejudge about further tardiness. 

### Garza, 150 Wn.2d at 363. Mr. Garzadidnot appear for the last day oftrial. His counsel advised the courtthat 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 hadnot appeared by 9:25 a.m., the trialjudge found himto bevoluntarily absent and directed that the trial continue withouthim. Defense counsel checkedwith his office at 10:00 a.m.; no new information had beenreceived. At 11 :00 a.m., thejudge issued a benchwarrant. [d. Trial concludedthat day with ajury determination that the defendant was gUilty. OnJune 26, the defense filed a motion for a newtrial and explained that the defendant hadbeen arrested on an outstanding Bothell municipal warrant while enroute to his trial. 7No. 30665-8-111 State v. Cobarruvias


### Id. Mr. Garza allegedly told thejail 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. Hewas released fromjail that evening. 

### Id. The trialjudge 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 ofdiscretion in light ofthe 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 ofincarceration 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 betweenthe finding ofvoluntary absence and the expected arrival time rather than the opening ofthat day's court session. 8No.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 courttreated the telephone call as a significant indicator that Mr. Garza's absence might notbe 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 counselorthe courtwhen 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 ofthe voluntariness finding), butrather the latest episode in a spotty attendance record. We do notread 

### Garza as ruling that some minimum period oftime must pass before an absence can be addressed orthat a history oftardiness is less egregious than a single episode. The trial court had a sufficient basis for initially finding thatthe unexplained absence on the final day oftrial was voluntary. Nothing that developed during the day changed the situation. The defendant made

no efforts to contact his counselorthe 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 couldhave granted a delay to allow further investigation, it was not required to do so. In the absence ofany attempt by the defendant to convey information to the court, 

### Thomson and 

### Garza indicate that the trialjudge acted withinhis discretion in permitting the case to continueto its conclusion in the defendant's absence. 9No.30665-8-II1 

### State 

### v. Cobarruvias However, it was a different story once the defendanthadbeen apprehended and put forth his explanation. As in 

### Thomson, the basis for the defendant's absence was medically related. Unlikethat case, Mr. Cobarruvias documented his situation. The defendant having come up with a reasonable explanation for his absence, 

### Garza required the trial courtto then considerthat explanation in light ofthe presumption against waiver. 150 Wn.2d at 368. Unfortunately, thatwas notdone here. The trial court carefully consideredthe motion and explained its reasoning at some length. The court determinedthat Mr. Cobarruvias had not shown that he was unable to make contactwith the court or counsel, nor had he shown that his obligations as a father left him too pressed for timeto attempt telephone contact. Underthe circumstances, the court concluded that the defendant's absence was voluntary. Hehad chosen to take his

son for medical attention and chosen to stay withhim while he was being treated. We agree with the trial courtthat given the defendant's limited evidentiary showing, it was reasonable to conclude that the absence was voluntary given the lack ofeffort to contact the court and the lack ofevidence that his presence at the hospital was medically necessary. Nonetheless, despite the careful consideration giventhe motion, webelieve the trial court erred in not expressly considering the defendant's showing in light ofthe "overarching"presumption against waiver. Neither 

### Thomson nor 

### Garza dealtwiththe application ofthe presumption to the thirdprong ofthe 

### Thomson test. In 

### Thomson, the 10

### No. 30665-8-111 State v. 

### Cobarruvias

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

### Garza the court overturnedthejudgmentbased onthe initial voluntariness ruling (prong one ofthe 

### Thomson test). Althoughthe 

### Garza court went onto comment onboth the effect of incarceration onthe voluntariness ruling and the defendant's obligationto attempt contact with the court, 3 it never applied the presumption to the reasonableness ofdefendant's efforts because it did notneed to do so. Thus, we cannot read its discussion ofan incarcerated defendant's obligation to contactthe court as an absolute bartothetrial court's consideration ofdefendant's explanation for his absence. Here, the court needed, but failed, to consider the presumption in its assessment. Thepresumption requires more than that the court simply listen to the defendant's explanation. Itthen must considerthe absence question anew starting with the presumption against voluntary waiver. As applied here, that would meanthe 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 throughoutthetrial andthe 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 atthis pointthat 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 considerhis ability and failure to attemptcontact with the court in assessingthe reasonableness ofhis behaviorthat 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 considerthe totality ofthe 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 ofthe defendant's actions? As it is unclear whetherthe court applied the appropriate test, we conclude that it abused its discretion in denying the motion for a new trial. 

### Rundquist. Thejudgment is reversed and the case remanded for trial.

Korsmo, C.J. WE CONCUR:

Brown, 

### J.

12