IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCOS ANTONIO RAMIREZ,

Defendant and Appellant.

S262010

Fifth Appellate District

F076126

Tuolumne County Superior Court

CRF50964

December 5, 2022

Chief Justice Cantil-Sakauye authored the opinion of the Court, 

in which Justices Corrigan, Groban, Jenkins, and Guerrero

concurred.

Justices Liu filed a dissenting opinion.

Justice Kruger filed a dissenting opinion.
1

PEOPLE v. RAMIREZ

S262010

Opinion of the Court by Cantil-Sakauye, C. J.

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.1 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). 

Defendant failed to appear in court on the second day of 

trial. Earlier that morning, emergency medical personnel and 

police officers had been dispatched to defendant’s home after a 

possible drug overdose was reported. According to a police 

officer who responded to the home, defendant had initially 

declined medical care, but ultimately decided to be taken by his 

mother to a hospital rather than to court. The trial court ruled 

that defendant was voluntarily absent under the circumstances,

and it continued trial without him in accordance with section 

1043(b)(2). 

On appeal, defendant claimed the trial court violated his 

constitutional rights by finding him to be voluntarily absent 

1 Subsequent statutory references are to the Penal Code.
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

2

without conducting an evidentiary hearing regarding the 

circumstances of his absence. A divided Court of Appeal ruled 

that substantial evidence supported the trial court’s finding that 

defendant voluntarily absented himself from trial. It further 

ruled that the court’s decision to proceed with trial, rather than 

grant defense counsel’s motion for a one-day continuance, 

constituted harmless error. (People v. Ramirez (Mar. 5, 2020, 

F076126) [nonpub. opn.].)

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, 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 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

3

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. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with first degree residential 

burglary. (§ 459.) He pleaded not guilty to the charge and a jury

trial was set for April 12, 2017, but he failed to appear on that 

date. Defense counsel informed the court that defendant’s 

mother had called his office and notified him that defendant was 

ill. The trial court vacated the jury trial and ordered defendant

to appear for trial setting the next day. It also issued a bench 

warrant but stayed execution of the warrant until the following 

day. On April 13, after the trial court received a doctor’s note 

regarding defendant’s prior illness, it rescheduled trial for 

July 5, 2017.

Defendant was present with counsel at the start of trial on 

July 5, at which time the jury was selected and sworn in. 

Following preliminary instructions to the jury, the trial court

released the jurors for the day and ordered them to return the 

next day at 8:30 a.m. Defendant was released on his previously 

sworn promise to appear. 

On the morning of July 6, defendant failed to appear in 

court. At 9:30 a.m., outside the presence of the jury, the court 

called the matter with the prosecutor, defense counsel, and 

Sonora Police Officer John Bowly present to recap an earlier in 

camera discussion regarding defendant’s absence. The court 

summarized: 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

4

“THE COURT: It appears this morning [defendant]

injected or ingested heroin and methamphetamine — at least 

the report to the Court indicated he overdosed and medical 

personnel were sent to his home. . . . [T]he first alert to this 

condition was given to [defense counsel] by [defendant’s]

mother, and [defense counsel] then notified [the prosecutor] by 

e-mail of a problem. When . . . counsel arrived today to court, 

I had been in chambers. We discussed the situation. 

My understanding was that — again, that emergency personnel 

were at the scene and examined [defendant,] who refused 

medical treatment. 

“It’s my understanding that Officer Norris, who was 

present at the scene, had observed the defendant at the time 

medical treatment was refused. The Court had Officer Bowly 

contact Officer Norris to explain the situation, and . . . I asked 

Officer Norris to go to the defendant’s home and advise him that 

we were expecting him to show up for trial. And the first 

response from the defendant was that he would be here — he 

will be here for trial. And I advised him that if he failed to 

appear in 15 minutes, which is a reasonable time to arrive in 

court given the distance of his home from the courthouse, that 

I would proceed to try him in his absence. [Defense counsel] . . .

then asked if he was going to go to the hospital, and the 

defendant then claimed he wanted to go to the hospital. And at 

that point I don’t know if he’s gone to the hospital or not.”

Defense counsel then received a call from defendant’s 

mother, and reported that she stated she was with defendant at 

the emergency room waiting to see a physician. The following 

colloquy occurred: 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

5

“THE COURT: All right. It’s also my understanding . . .

that this is the second time that [defendant] has been sick on 

the day of trial. The first time, which I believe was back in April 

when this case was set for trial, on the day of trial he requested 

his mother report to the Court that he was sick with the flu. 

Court continued his trial and issued a bench warrant and 

ordered him to appear the next day. The next day his mother 

appeared, not the defendant, and she had a note from a doctor 

that said he was seen at the Sonora Regional Medical Center.[2] 

[¶] Any other facts, [c]ounsel, that should be on the record 

regarding this incident? 

“[Prosecutor]: Yes, your Honor. . . . The Court mentioned 

in the beginning that the information was he had ingested drugs 

this morning. I think that the information was the mom 

believed he had gone out with another individual. She thinks 

he came back home around 2:00 a.m. It was my understanding 

that he ingested it sometime in the night. 

“I received a text message from Officer Bowly . . . at 

7:00 a.m. in the morning indicating that at 7:00 a.m. [the] 

Sonora Police Department had responded to [defendant’s] home 

2 The minute order indicates that defendant failed to 

appear in court on April 12, 2017, but was present in court on 

April 13. However, in its recitation of facts concerning 

defendant’s second absence from trial on July 6, the trial court 

stated twice that defendant’s mother, and not defendant, was 

present in court on April 13. Neither the prosecutor nor defense 

counsel voiced that the court was mistaken or otherwise 

indicated that defendant had personally appeared on April 13. 

In any event, it is undisputed that defendant did not appear on 

April 12, the date when his trial was initially set, and the trial 

court did not assign significant weight to defendant’s asserted 

presence (or failure to appear) in court the following day.
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

6

for the mother reporting that there was a potential overdose on 

heroin. When the officers arrived medical was there, and at 

7:24 a.m. I got a message that the defendant declined medical 

attention and refused to go in an ambulance to the hospital. 

That was 7:24 a.m. Our court hearing today was at 8:30 a.m. 

He did not show up at 8:30. 

“When we met with the judge and the phone call was 

placed and Officer Norris responded back to the house, it was at 

. . . approximately 9:25. The defendant originally indicated over 

the phone — which we can all hear Officer Norris, that he was 

going to come at about 9:30 this morning. When the Court 

indicated that Officer Norris should give him a ride, he was then 

asked if he was going to the hospital. At that point, he switched, 

instead of coming to court, that he would rather go to the 

hospital.

“Apparently, he is waiting to see the doctor. It doesn’t 

appear that he’s not conscious. We also have information that 

he appeared to Officer Norris to be coherent when answering the 

questions to medical. He was able to walk unassisted. He was 

conscious and apparently still appears to be that way. 

“As the Court mentioned, this is the second time, I believe, 

the defendant is voluntarily trying to avoid the process of the 

Court.

“Those [are] additional facts I wanted to put on the record, 

he declined medical and then chooses to go to the hospital 

some — now almost getting to way over an hour after when he 

was suppose[d] to be here and two hours after medical first 

contacted him.

“THE COURT: [Defense counsel], would you like to put 

any other facts on the record?
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

7

“[Defense counsel]: Yes, your Honor. When we spoke to 

Officer Norris, Officer Norris clearly indicated that defendant

was . . . under the influence of drugs. [¶] In speaking to the 

mother, she said that [defendant] was nodding out and being 

conscious and nonresponsive, and she said she was going to try 

to take him to the hospital. Then on the last call [defendant’s 

mother] said she was taking him out to the car to take him to 

the hospital. This latest phone call says that she was successful 

in getting him to the car. 

“[Defendant] is 19 years old. He does have some learning 

disabilities. So a lot of things he says on the phone, your Honor, 

cannot be taken at face value. [¶] And also if [defendant is] 

under the influence of drugs, I think he is likely to say anything 

to the policeman that was at his home. Therefore, I will suggest 

we continue the case until tomorrow 8:30 or declare a mistrial.

“[Prosecutor]: And, your Honor, I have plans to be out of 

town tomorrow afternoon that have been in place for some time 

now.

“THE COURT: All right. . . . [Section 1043(b)(2)] . . . 

provides that the absence of a defendant in a criminal felony 

case shouldn’t prevent the . . . continuing with the trial that’s 

already been commenced, the record will reflect [defendant] was 

present during jury selection process and when the jury was 

sworn. And so, again, his absence should not necessarily 

prevent the continuance of the trial all the way through verdict 

if the defendant is voluntarily absent from trial.

“So the issue before the Court is whether or not 

[defendant] is voluntarily absent from the trial. And clearly the 

obvious cases — some case law supports this where the 

defendant escapes or absents himself from the trial or when 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

8

there is disruptive behavior, and the defendant is warned he will 

be removed from the courtroom because of disruptive behavior.

“But I think it’s clear that in any case, criminal or civil, 

the law doesn’t allow him to take advantage of his own 

wrongdoing to delay the process of the court. [Defendant]

voluntarily ingested controlled substances to the extent that it 

required emergency response by police and emergency medical 

care, emergency medical personnel. Apparently, he was not as 

seriously — in such a serious condition that he cannot refuse 

treatment and which he in fact did. And it was only when he 

was asked if he was going to the hospital after I advised him to 

be in court in 15 minutes, that Officer Norris will give him a 

ride, that he decides to go to the hospital.

“This is the second time on the day of trial or the first time 

on the day of trial before it commenced that he — his mother, 

again, reported that he had a medical condition, specifically the 

flu, I believe, and he could not be present; he was vomiting and 

could not be present. It wasn’t until the next day she came in 

with a doctor’s note that he was in fact seen at the hospital. We 

have no idea of the nature of his condition or what he was seen 

for or what the diagnosis was, just that he went to the hospital 

the next day.

“In this case the trial commenced. We get a call in the 

morning of the trial or the Court was advised the morning of the 

trial that he has engaged in some conduct voluntarily which 

made it — prevented him from attending the trial. Given these 

circumstances, I think [defendant] voluntarily engaged in 

conduct that resulted in him being absent from his own trial, 

and I am going to proceed with this trial in his absence, and 

[defense counsel’s] request for a mistrial is denied, request for a 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

9

continuance is denied, but I think there’s an adequate record 

here to preserve any issues that might arise on appeal.

“Anything else, Counsel?

“[Prosecutor]: No, your Honor, thank you.

“[Defense counsel]: Just one, he may have voluntarily 

used some drugs. I think the court is making a big assumption 

that he continued to voluntarily use drugs to the extent that he 

needed medical treatment. That portion we really don’t know.

“[Prosecutor]: Well, except that he did not go. The initial 

call for medical came at 7:00 a.m. They responded. He refused 

medical. He was conscious and coherent, according to Officer 

Norris. [¶] It’s now at 9:25 when he is told he needed to be in 

court or the judge was going to continue with the trial, did he 

then decide he wanted to go to the hospital some two and a half 

hours after the first call for medical.

“THE COURT: All right. There’s no evidence that 

somebody forcibly injected or caused [defendant] to consume 

controlled substances — to use controlled substances to put him 

in the condition he was in this morning when his mother made 

the phone call to [defense counsel’s] office . . . . His voluntary 

use — intentional use of controlled substances is a voluntary act 

which caused this circumstance. And I consider that an 

intentional act which caused him to be absent from the court. 

I think he waived his right to be present at his trial based on 

these circumstances, and we will proceed with the trial.” 

The court then directed defense counsel to contact 

defendant’s mother to inform her the court planned to proceed 

with the trial without defendant. Defense counsel confirmed 

that he had notified defendant’s mother as instructed, and 

proceedings resumed in front of the jury at 9:55 a.m. The court
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

10

informed the jurors that trial would be proceeding in 

defendant’s absence and instructed them not to consider the 

reason for his absence or the fact that he was absent for part of 

the trial in their deliberations.

The prosecution rested its case at approximately 

11:00 a.m., following testimony from its two witnesses. Defense 

counsel stated that he had no witness “at this time.” The trial 

court then called the attorneys for a sidebar conversation and 

told defense counsel that it was willing to take a recess if the 

defense wanted to bring defendant’s mother to court. Defense 

counsel replied, “My thinking was to move things along.” He 

suggested, “We can break, go over jury instructions, come back 

at 1:15 or 1:30, and then if they’re not here, then I will rest and 

then we will do closing.” He also advised the court that he had 

asked defendant’s mother to bring defendant to the courtroom if 

they were done at the hospital. The court released the jury until 

1:15 p.m. 

The trial court discussed the proposed jury instructions 

with counsel during the break in proceedings. The court 

indicated that it would refrain from giving certain jury 

instructions until defense counsel confirmed whether defendant

or his mother would testify in the afternoon. The prosecutor

then inquired whether defense counsel had heard from 

defendant. Defense counsel responded that he had “been 

texting” with defendant’s mother and kept her updated about 

the proceedings. According to defense counsel, defendant’s 

mother indicated that she was not sure whether defendant could 

return to court at 1:30 p.m. to testify, but that they would

“definitely try.” The court asked defense counsel to inform the 

prosecutor once he received confirmation regarding whether 

defendant would testify. 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

11

Just before 2:00 p.m., defense counsel renewed his motion 

for a mistrial on the ground that defendant had gone to the 

emergency room that morning and was still not present. The 

court denied the renewed motion without further comment. The 

court then asked defense counsel whether defendant was still in 

the hospital. Defense counsel confirmed that defendant was not

in the hospital, adding, “I think he went back home with mom.” 

The court inquired whether that information was reflected in a 

text message from defendant’s mother, and defense counsel 

responded that it was. The court subsequently noted on the 

record that defendant was no longer in the hospital and that it

had given defendant an opportunity to appear at trial and put 

on any testimony or defense that he may have had. Defense 

counsel noted that defendant’s mother had told him defendant

was “in no state to come to court and take the witness stand,”

adding, “whatever that means.” The defense then rested 

without presenting any witnesses. Following court instructions 

and closing arguments, the jury began deliberating. The jury 

was released for the evening and ordered to reappear the 

following day. 

On July 7, the jury resumed deliberations and the court 

reconvened to address jury questions. Defendant was present 

in court after the morning session began. The jury found 

defendant not guilty of first degree residential burglary but 

found him guilty of the lesser included offense of attempted first

degree burglary. 

Following the jury’s verdict, the prosecutor requested that 

defendant be remanded into custody prior to sentencing based 

on his prior serious felony conviction and multiple court 

absences. Defense counsel objected, stating: “Aside from last 

April when he had the stomach flu, [defendant] has made all 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

12

court appearances except for yesterday, which might have been 

a moment of panic.” 

The trial court ordered defendant to be remanded to the 

custody of the sheriff until sentencing. It explained: 

“[Defendant’s] prior failure to appear from illness, the Court 

accommodated. [The] Court established a record in this case as 

to why it continued in defendant’s absence. He voluntarily 

ingested controlled substances too, which is voluntary conduct 

that caused him to absen[t] himself from this trial, whether he’s 

able to be here or not, he could have appeared yesterday because 

he was home according to the text message you received . . . and 

could have been in court. In any event, I think his conduct 

suggests he may not appear.” 

At the sentencing hearing approximately three weeks 

later, the court sentenced defendant to five months in jail, 

suspended imposition of the sentence, and placed defendant on 

probation for five years. As a condition of probation, defendant 

was required to complete a residential drug treatment program. 

Defendant appealed his conviction, arguing that the trial 

court violated his constitutional rights by finding him

voluntarily absent and proceeding with trial in his absence. 

A divided Court of Appeal affirmed the judgment in an 

unpublished decision. The majority held that the record at the 

time of the trial court’s ruling clearly supported its implied 

findings that defendant was aware of the processes taking place 

and knew he had a right and obligation to be present, as well as 

the court’s express finding that defendant voluntarily absented 

himself from trial. The majority found defendant’s claim that 

the trial court should have granted his request for a one-day 

continuance to be “a much closer question,” but declined to 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

13

address the question on the merits by assuming error but 

finding it harmless. (People v. Ramirez, supra, F076126.)

The dissenting justice perceived the trial court as having 

misapplied the applicable law in finding that defendant was 

voluntarily absent from trial, and further concluded that,

without an evidentiary hearing, the record was insufficient for 

the trial court to find that defendant intended to waive his 

fundamental constitutional right to be present at trial. The 

dissenting justice also regarded the trial court’s rejection of the 

defense request for an overnight continuance as prejudicial 

error. 

We granted review to decide whether the Court of Appeal 

erred in affirming the trial court’s finding that defendant was 

voluntarily absent on the second day of trial.

II. DISCUSSION

A criminal defendant’s right to be present at trial is 

protected under both the federal and state Constitutions. (U.S. 

Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. 

Espinoza (2016) 1 Cal.5th 61, 72 (Espinoza).) Yet that right is 

not absolute; it may be expressly or impliedly waived. 

(Espinoza, at p. 72.) As the United States Supreme Court

explained more than a century ago, “[W]here the offense is not 

capital and the accused is not in custody, the prevailing rule has 

been, that if, after the trial has begun in his presence, he 

voluntarily absents himself, this does not nullify what has been 

done or prevent the completion of trial, but, on the contrary, 

operates as a waiver of his right to be present and leaves the 

court free to proceed with the trial in like manner and with like 

effect as if he were present.” (Diaz v. United States (1912) 

223 U.S. 442, 455.) California has codified this rule as section 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

14

1043(b)(2). (Espinoza, at p. 72, citing People v. Gutierrez (2003) 

29 Cal.4th 1196, 1204 (Gutierrez).)

“ ‘In determining whether a defendant is absent 

voluntarily, a court must look at the “totality of the facts.” ’ ” 

(Espinoza, supra, 1 Cal.5th at p. 72.) We have often cited the 

high court’s decision in Taylor v. United States (1973) 414 

U.S. 17 (Taylor) as instructive when evaluating whether, under 

section 1043(b)(2), a defendant is voluntarily absent after trial 

has commenced. (Espinoza, at p. 73; People v. Concepcion (2008) 

45 Cal.4th 77, 84 (Concepcion); Gutierrez, supra, 29 Cal.4th at 

p. 1204.) In Taylor, the court confirmed that “ ‘[i]f a defendant 

at liberty remains away during his trial the court may proceed 

provided it is clearly established that his absence is voluntary. 

He must be aware of the processes taking place, of his right and 

of his obligation to be present, and he must have no sound 

reason for staying away.’ ” (Taylor, at pp. 19–20, fn. 3, quoting 

Cureton v. U.S. (D.C. Cir. 1968) 396 F.2d 671, 676.) We have 

affirmed that a trial court must adhere to Taylor’s three-part 

test when evaluating whether a defendant is voluntarily absent 

under section 1043(b)(2). (Espinoza, at p. 74.) 

We have previously recognized that “[t]he role of an 

appellate court in reviewing a finding of voluntary absence is a 

limited one. Review is restricted to determining whether the 

finding is supported by substantial evidence.” (Espinoza, supra, 

1 Cal.5th at p. 74, citing Concepcion, supra, 45 Cal.4th at p. 84.) 

But we have not yet had occasion to explore how the substantial 

evidence standard of review applies in the context of a trial 

court’s factual finding that must be “ ‘clearly established.’ ” 

(Taylor, supra, 414 U.S. at p. 19, fn. 3.) 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

15

Our trial courts typically apply one of three standards of 

proof depending on the particular determination of fact: the

“preponderance of the evidence” standard, the “clear and 

convincing evidence” standard, or the “beyond a reasonable 

doubt” standard. (See Conservatorship of O.B., supra, 9 Cal.5th

at p. 998.) The preponderance of the evidence standard, the 

lowest standard of proof, “ ‘ “simply requires the trier of fact ‘to 

believe that the existence of a fact is more probable than its 

nonexistence.’ ” ’ ” (Ibid.) The clear and convincing evidence 

standard, the intermediate standard, “ ‘requires a finding of 

high probability’ ” that a fact is true. (Ibid.) The beyond a 

reasonable doubt standard, the most rigorous standard of proof, 

applies to findings of guilt in criminal matters and requires the 

trier of fact to hold “an abiding conviction that the charge is 

true” although it “need not eliminate all possible doubt.” 

(CALCRIM No. 220; see Conservatorship of O.B., at p. 998,

quoting § 1096.)

The parties did not brief the question of what standard of 

proof applies when a trial court determines it is “clearly 

established” a defendant has voluntarily absented himself from 

trial.3 We note that Taylor’s “clearly established” requirement 

could arguably convey a heightened standard of proof designed 

to protect a defendant’s fundamental constitutional right to be 

present, which might suggest the intermediate clear and 

convincing standard. (See Gutierrez, supra, 29 Cal.4th at 

p. 1209 [explaining that a defendant’s right to presence is 

3 When asked at oral argument what the “clearly 

established” standard requires, the parties provided slightly

different interpretations but agreed that the standard was no 

more stringent than the “clear and convincing evidence”

standard.
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

16

fundamental in our system of justice and guaranteed by our 

Constitution]; Conservatorship of O.B., supra, 9 Cal.5th at 

p. 999 [clear and convincing standard “applies to various 

determinations ‘ “where particularly important individual 

interests or rights are at stake” ’ ”].) Nevertheless, we need not 

decide this issue. Assuming for our limited purposes that the 

trial court’s finding of a clearly established voluntary absence 

was akin to a finding by clear and convincing evidence, that 

finding is supported even reviewing it under this more 

demanding standard applicable to such findings.

4

In Conservatorship of O.B., supra, 9 Cal.5th 989, we 

clarified how an appellate court is to review the sufficiency of 

the evidence associated with a finding made by the trier of fact 

pursuant to the clear and convincing standard. Explaining that 

“appellate review of the sufficiency of the evidence in support of 

a finding requiring clear and convincing proof must account for 

the level of confidence this standard demands” (id. at p. 995), we 

4 The dissenting opinion would prefer to address what 

standard of proof must be met to “clearly establish” that a 

defendant’s absence is voluntary, despite neither party having 

briefed the issue, because “[n]either party here questions that 

‘clearly established’ means something more than proof by a 

preponderance of the evidence.” (Dis. opn. of Liu, J., post, at 

pp. 3–4.) We are not prepared to agree with this assumption in 

light of the parties’ statements at oral argument described ante,

footnote 3, and the holdings of numerous courts to the contrary. 

(See, e.g., State v. Moore (Iowa 1979) 276 N.W.2d 437, 440 

[voluntary absence must be proved by a preponderance of the 

evidence]; State v. Lister (N.H. 1979) 406 A.2d 967, 969 [same]; 

People v. Anderson (N.Y.App.Div. 2003) 762 N.Y.S.2d 551, 551

[same]; Dorsey v. State (Md.Ct.App. 1998) 709 A.2d 1244, 1253

[same]; Commonwealth v. Carusone (Pa.Super. 1986) 506 A.2d 

475, 478 [same].) 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

17

concluded that “when reviewing a finding that a fact has been 

proved by clear and convincing evidence, the question before the 

appellate court is 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” (id. at 

pp. 995–996). 

Thus, assuming the clear and convincing evidence 

standard of proof applies to the trial court’s voluntary absence 

determination, the question on review is whether the record as 

a whole contains substantial evidence from which a reasonable 

fact finder could have found it highly probable that defendant’s 

absence was voluntary. Put differently, we review the entire 

record to determine whether there is substantial evidence from 

which a reasonable fact finder could have found it highly 

probable that defendant was “ ‘ “aware of the processes taking 

place,’ ” that he knew of ‘ “his right and of his obligation to be 

present,” ’ and that he had ‘ “no sound reason for remaining 

away.” ’ ” (Espinoza, supra, 1 Cal.5th at p. 74, quoting Taylor, 

supra, 414 U.S. at p. 19, fn. 3.) We apply this standard of review

to the present case, keeping in mind that an appellate court 

“must view the record in the light most favorable to the [trier of 

fact’s finding] and give due deference to how the trier of fact may 

have evaluated the credibility of witnesses, resolved conflicts in 

the evidence, and drawn reasonable inferences from the 

evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 996.) 

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. Having been present in court on the first day of trial

and been ordered by the court to return the following day, it is 

obvious that defendant was aware of the processes taking place 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

18

and knew of his right and obligation to be present the next day. 

(See Espinoza, supra, 1 Cal.5th at p. 74.) Defendant does not 

dispute this. The only question, then, is whether defendant had 

no sound reason for remaining away. 

Viewed in the light most favorable to the trial court’s 

finding of voluntary absence and giving due deference to how 

the court may have evaluated the credibility of those present at 

defendant’s home, resolved conflicts in the evidence, and drawn 

reasonable inferences from the evidence, the record supports the 

trial court’s implicit determination that defendant had no sound 

basis for failing to appear on the second day of trial. After 

learning that defendant was not present in court and had 

ingested illicit drugs to the extent that it prompted an 

emergency response, the trial court sent an officer to defendant’s 

home to confirm his condition and to arrange for defendant to 

come to court. In making its voluntary absence ruling, the court 

emphasized that defendant was sufficiently lucid to assess 

whether he needed medical treatment, which he initially 

refused.

5

 The court pointed out that it was only after it advised 

5 As the prosecutor emphasized at the time of the voluntary 

absence ruling, emergency medical services personnel 

dispatched to defendant’s home accepted defendant’s refusal of 

medical treatment. We take judicial notice on our own motion 

of Tuolumne County Emergency Medical Services Agency’s 

policy regarding patient refusal of emergency medical services, 

which provides that a patient may refuse emergency care only if 

emergency medical services personnel determines that the 

patient is “competent,” meaning “a patient who is alert and 

oriented with the capacity to understand the circumstances 

surrounding their illness or impairment and the risks associated 

with refusing treatment or transport.” (Tuolumne County 

Emergency Medical Services Agency, Patient Refusal of 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

19

defendant to be in court in 15 minutes that defendant decided to 

go to the hospital. The court also noted that this was the second 

time that defendant had failed to appear on the day of trial, and 

although defendant’s mother had reported on the trial date 

scheduled in April that defendant was ill with the flu, the court 

had “no idea of the nature of his condition or what he was seen 

for or what the diagnosis was.” Defense counsel did not 

contradict these observations even after the court invited him to 

add to the record. 

Indeed, to the extent we may consider information provided 

to the trial court after it found defendant to be voluntarily 

absent, we note that no subsequent evidence undermined the 

court’s determination. (Cf. Concepcion, supra, 45 Cal.4th at 

p. 85, citing People v. Connolly (1973) 36 Cal.App.3d 379, 384–

385 [noting that “defendant did not move for reconsideration of 

the determination of voluntary absence, and he did not seek to 

bring to the trial court’s attention any new evidence that 

purportedly undermined that determination”].) At 

approximately 11:00 a.m., after the prosecution put on its 

witnesses, the court and counsel agreed to a recess of more than 

two hours in order to give defendant a chance to appear and 

Treatment or Transport Against Medical Advice AMA

<https://tuolumnecounty.ca.gov/DocumentCenter/View/20633/

Policy-41000-Patient-Refusal-of-Treatment-or-AgainstMedical-Advice> [as of November 30, 2022]. All internet 

citations in this opinion are archived by year, docket number, 

and case name at <http://courts.ca.gov/38324.htm>.) Although 

the policy is not of substantial consequence to the determination 

of this action (see Evid. Code, § 459), it provides useful context 

regarding the trial court’s consideration of defendant’s refusal 

to accept medical treatment in making its voluntary absence 

finding. 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

20

testify, and defense counsel informed defendant’s mother of this 

plan. Yet defendant and his mother returned home instead of 

coming to court that afternoon. It appears that defendant 

himself never contacted his counsel or the court at all during the 

entire day to update them regarding his condition — the court 

received only uncorroborated information from defendant’s 

mother via defense counsel. And when defendant was present 

at court the following day, he offered no additional information 

regarding the hospital visit, such as the seriousness of his 

condition, when he was discharged, and why he could not attend 

court the previous afternoon. Nor did defendant move for 

reconsideration of the trial court’s ruling. (Concepcion, supra, 

45 Cal.4th at pp. 84–85 [“We reject defendant’s contention that 

the trial court had a sua sponte duty to reconsider its ruling once 

he was recaptured. It was up to defendant to move for 

reconsideration, which he failed to do. Even now he has failed 

to identify any new information that would have tended to 

undermine the trial court’s determination of voluntary 

absence.”].) Finally, in opposing the prosecution’s request to 

remand defendant for sentencing, defense counsel 

acknowledged that defendant’s absence on the second day of 

trial “might have been a moment of panic.”

Defendant asserts the trial court erroneously found that he 

was voluntarily absent merely because the absence was “selfinduced” based on his drug use. As a general proposition, we 

agree with defendant that a defendant who ingests illicit drugs 

and subsequently requires medical assistance after trial has 

commenced has not, invariably, voluntarily absented himself or 

herself. We reaffirm that “[i]n determining whether a defendant 

is absent voluntarily, a court must look at the ‘totality of the 

facts.’ ” (Gutierrez, supra, 29 Cal.4th at p. 1205; see Espinoza, 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

21

supra, 1 Cal.5th at p. 72.) And it is true that the trial court here 

did at times place heavy reliance on defendant’s drug use. But 

the record as a whole demonstrates that the trial court did 

consider all of the information available and made a factual 

finding that, notwithstanding the effects of his drug use, 

defendant could have come to court and voluntarily chose not to 

do so. Substantial evidence supports that finding.

From the court’s references to defendant’s only partly

explained absence from court at the first trial date in April, his 

initial refusal to receive medical attention after medical 

personnel were dispatched to his home on the morning of July 6, 

and his decision to go to the hospital only after the court advised 

him to be in court in 15 minutes, we understand the court to 

have been unconvinced that defendant, especially by 

9:30 a.m. — more than two hours after medical personnel had 

been dispatched to defendant’s home — was truly debilitated 

and unable to come to court. That disbelief seems to have played 

an important part in the court’s determination that defendant 

was voluntarily absent. The circumstance that defendant’s 

condition, whatever it was, stemmed from voluntary drug use 

certainly also played a significant role. But the record does not 

support defendant’s characterization of the trial court’s finding 

as resting on an asserted rule that an absence stemming from 

drug use is per se voluntary. Indeed if this were so, the court’s

inquiries to and colloquies with counsel, its unsuccessful 

advisement to defendant that he be in court in 15 minutes, and 

its later spontaneous willingness to recess for nearly three hours 

after the prosecution rested its case would likely not have

occurred. Rather, the record as a whole reflects that the trial 

court tried to ascertain whether defendant was absent 

voluntarily. Put differently, the trial court does appear to have 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

22

considered all the circumstances shown by the evidence before 

it, even though it placed substantial emphasis on the apparently 

intentional nature of defendant’s drug use.

In sum, viewing the record in the light most favorable to the 

trial court’s finding, we conclude that substantial evidence 

supports the trial court’s ruling that defendant was voluntarily 

absent. Our review of the record as a whole reveals substantial 

evidence from which a reasonable fact finder could have found 

it highly probable that defendant was aware of the processes 

taking place, of his right and obligation to be present, and that 

he had no sound reason for staying away.6 Accordingly, we 

conclude that the Court of Appeal did not err when it affirmed 

the trial court’s finding that defendant was voluntarily absent.7

6 To the extent the dissent suggests that additional 

information might have cast a different light on defendant’s 

absence, the responsibility to present such evidence lay with 

defense counsel.

7 Defendant’s petition for review did not adequately raise 

the additional question of whether the trial court abused its 

discretion when it denied defense counsel’s motion for a 

continuance. (Cal. Rules of Court, rule 8.516(b)(1); Scottsdale 

Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 654, fn. 2.) 

Even if the secondary issue were adequately raised, we are not 

compelled to address it and decline to do so here. (Cal. Rules of 

Court, rule 8.516(b)(3) [“court need not decide every issue the 

parties raise”]; Coast Community College Dist. v. Commission on 

State Mandates (2022) 13 Cal.5th 800, 814, fn. 4.) 
PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

23

III. DISPOSITION

We affirm the judgment of the Court of Appeal.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

GROBAN, J.

JENKINS, J.

GUERRERO, J.
1

PEOPLE v. RAMIREZ

S262010

Dissenting Opinion by Justice Liu

Defendant Marcos Antonio Ramirez was 19 years old and 

had been using heroin for almost a year when he overdosed on 

the night before the presentation of evidence was scheduled to 

begin in his burglary trial. Police and medical personnel were 

dispatched to his home in the morning. After initially declining 

medical treatment and telling an officer he would make it to 

court, Ramirez instead decided to go to the hospital and received 

care at the emergency room.

The trial court concluded that Ramirez was voluntarily 

absent from trial that day. Observing that “Ramirez voluntarily 

engaged in conduct that resulted in him being absent from his 

own trial,” the court decided it would “proceed with this trial in 

his absence,” and it denied defense counsel’s request for a 

one-day continuance so that Ramirez could be present. The 

presentation of evidence began and ended that day without 

Ramirez, and the jury convicted him of attempted burglary the 

next day.

A criminal defendant has a right to be present at his own 

trial under the Fifth and Sixth Amendments to the United 

States Constitution. These rights are waived by a defendant’s 

absence only if “ ‘it is clearly established that his absence is 

voluntary.’ ” (Taylor v. United States (1973) 414 U.S. 17, 19, 

fn. 3 (Taylor).) Even if a court finds a defendant voluntarily 

absent, it must grant a continuance of trial to allow the 
PEOPLE v. RAMIREZ

Liu, J., dissenting

2

defendant to return unless “ ‘the public interest clearly 

outweighs that of the voluntarily absent defendant.’ ” (U.S. v. 

Latham (1st Cir. 1989) 874 F.2d 852, 857.) To weigh those 

interests, the court should assess “ ‘the likelihood that the trial 

could soon take place with the defendant present,’ ” “ ‘the 

difficulty of rescheduling,’ ” and “ ‘the burden on the 

Government.’ ” (Ibid., quoting U.S. v. Tortora (2d Cir. 1972) 464 

F.2d 1202, 1210 (Tortora).)

I agree with today’s opinion that the trial court should not 

have found that Ramirez’s voluntary drug use necessarily 

rendered him voluntarily absent from trial. But I cannot agree 

that the sparse record before us contains sufficient evidence by 

which the trial court could have found it clearly established that 

Ramirez voluntarily absented himself from trial under the 

correct standard. Nor can I agree that Ramirez has forfeited his 

challenge to the denial of his motion for a one-day continuance. 

Ramirez raised that argument in the trial court, in the Court of 

Appeal, and in his petition and briefing before us, and the 

Attorney General has never disputed that Ramirez properly 

preserved the issue for our review. Because the trial court erred 

by finding Ramirez’s absence voluntary and by denying the 

continuance request, and because holding trial in Ramirez’s 

absence was prejudicial, I would reverse the judgment.

I.

I agree with today’s opinion that a defendant’s voluntary 

ingestion of drugs and subsequent absence from trial as a result 

of that drug use are alone insufficient to establish that the 

defendant voluntarily waived the right to be present at trial. 

(See maj. opn., ante, at pp. 20‒21; see also People v. Bell (2019) 

7 Cal.5th 70, 114 [a defendant’s waiver of the right to be present 
PEOPLE v. RAMIREZ

Liu, J., dissenting

3

must be “knowing, intelligent, and voluntary”].) I do not agree, 

however, that the record before us contains substantial evidence 

by which the trial court reasonably could have found such a 

waiver.

“There can be no waiver of a constitutional right absent 

‘an intentional relinquishment of a known right or privilege.’ ” 

(People v. Taylor (1982) 31 Cal.3d 488, 497.) Courts must 

“ ‘indulge every reasonable presumption against waiver’ of 

fundamental constitutional rights.” (Johnson v. Zerbst (1938) 

304 U.S. 458, 464.) In certain circumstances, defendants may 

impliedly waive their rights to be present at trial by voluntarily 

absenting themselves. (People v. Concepcion (2008) 45 Cal.4th 

77, 82–83.) We look to a defendant’s “purpose in failing to 

appear” to determine whether an absence constitutes a 

voluntary waiver. (People v. Espinoza (2016) 1 Cal.5th 61, 74 

(Espinoza).) For a court to find that a defendant has waived the

right to be present, “ ‘it [must be] clearly established that his 

absence is voluntary.’ ” (Taylor, supra, 414 U.S. at p. 19, fn. 3.)

Today’s opinion does not address what standard of proof 

must be met for the voluntariness of a defendant’s absence to be

“clearly established.” (Taylor, supra, 414 U.S. at p. 19, fn. 3.) 

Instead, it declines to opine on the question given the parties’ 

statements at oral argument and “the holdings of numerous 

courts” that voluntary absence must be proved by a 

preponderance of the evidence. (Maj. opn., ante, at p. 16, fn. 4.)

I see no reason to avoid the question. Future courts 

deciding whether to proceed in a defendant’s absence would 

benefit from our guidance, and there seems to be little dispute 

about the standard. Neither party here questions that “clearly 

established” means something more than proof by a 
PEOPLE v. RAMIREZ

Liu, J., dissenting

4

preponderance of the evidence, and no one claims it requires 

proof beyond a reasonable doubt. Ramirez’s counsel suggested 

during oral argument that voluntariness must be “clearly and 

affirmatively demonstrated.” The Attorney General agreed that 

the standard is “something more akin to clear and convincing 

[evidence],” and not merely that “the standard was no more 

stringent than the ‘clear and convincing evidence’ standard” 

(maj. opn., ante, at p. 15, fn. 3). As for the out-of-state cases 

applying a preponderance of the evidence standard (maj. opn., 

ante, at p. 16, fn. 4), none of them appear in the briefing before 

us, and none discuss the requirement stated in Taylor that the 

voluntariness of a defendant’s absence be “clearly established.” 

(Taylor, supra, 414 U.S. at p. 19, fn. 3.)

Proof by clear and convincing evidence “ ‘requires a finding 

of high probability.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 

989, 998.) The evidence before the factfinder must be “ ‘ “ ‘so 

clear as to leave no substantial doubt’ ” ’ ” and “ ‘ “ ‘sufficiently 

strong to command the unhesitating assent of every reasonable 

mind.’ ” ’ ” (Id. at p. 998, fn. 2.) We recently concluded that “an

appellate court evaluating the sufficiency of the evidence in 

support of a finding must make an appropriate adjustment to its 

analysis when the clear and convincing standard of proof 

applied before the trial court.” (Id. at p. 1005.) On appeal, we 

“must determine whether the record, viewed as a whole, 

contains substantial evidence from which a reasonable trier of 

fact could have made the finding of high probability demanded 

by this standard of proof.” (Ibid.) “Substantial evidence is 

evidence that is ‘of ponderable legal significance,’ ‘reasonable in 

nature, credible, and of solid value,’ and ‘ “substantial” proof of 

the essentials which the law requires in a particular case.’ ” (Id.

at p. 1006.)
PEOPLE v. RAMIREZ

Liu, J., dissenting

5

The record in this case does not contain substantial 

evidence by which the court could have found it highly probable 

that Ramirez overdosed and went to the hospital for the purpose 

of avoiding his trial. As Justice Smith explained in his dissent 

from the Court of Appeal’s decision, “[t]here was no evidence 

before the trial court as to why, for what purpose, and under 

what circumstances, Ramirez ingested the drugs. Ramirez 

could very well have taken the drugs to calm himself or to fortify 

himself, so as to enable him to attend the proceedings, rather 

than in a bid to avoid the trial . . . .” Justice Smith was correct 

to observe that because the trial court “did not consider the 

question whether, in ingesting the drugs, Ramirez had intended 

to waive his constitutional rights to be present at trial and to 

testify in his own defense,” and because it did not “hold[] a 

hearing to further develop the record,” it “simply did not have 

sufficient information to determine whether Ramirez took the 

drugs to thwart the judicial proceedings that were underway, 

thereby waiving his right to be present, or whether he took the 

drugs for other reasons.” (People v. Ramirez (Mar. 5, 2020, 

F076126) (dis. opn. of Smith, J.) [nonpub. opn.].) 

The trial court was aware that Ramirez’s mother had 

called police and medical services that morning to report her 

son’s overdose. The court emphasized in its ruling that Ramirez 

refused treatment offered by the medical responders. However, 

as Justice Smith noted, it is unclear “whether Ramirez refused 

all forms of assistance from paramedics or merely refused 

transport to the hospital by ambulance.” The court also had no 

information about “what, and how much, assistance the 

paramedics actually rendered.” To the extent today’s opinion 

relies on the Tuolumne County Emergency Medical Services 

Agency’s policy on a patient’s refusal of treatment or transport
PEOPLE v. RAMIREZ

Liu, J., dissenting

6

(maj. opn., ante, at pp. 18‒19, fn. 5), I note that neither party 

cites that policy and the record contains no indication that any 

such policy was followed here.

The trial court instructed an officer at the scene to inform 

Ramirez that the trial would proceed without him if he was not 

at court in fifteen minutes. Ramirez’s initial response was that 

he would come. His counsel then asked him over the phone if he 

was going to go to the hospital, and he said he wanted to go. 

Shortly after that conversation, his mother called defense 

counsel to let him know that Ramirez “was nodding out and 

being [un]conscious and nonresponsive,” and that “she was 

going to try to take him to the hospital.” Ramirez was 19 years 

old, had learning disabilities, and was in the midst of a heroin 

overdose. The court had no information that indicated whether 

Ramirez understood the officer’s warning that he needed to 

come to court or whether he was well enough to follow through 

on his initial agreement to do so.

Finally, the court noted that Ramirez had missed a day of 

trial once before. Several months earlier, when the case was 

initially set for trial, Ramirez’s mother reported to the court that 

he could not make the first day of trial because he was sick with 

the flu. The court continued the trial, and Ramirez’s mother 

came the next day with a note from a doctor that said he had 

been seen at a local medical center. There was no evidence to 

discredit the mother’s report; the record provides no information 

from which the trial court reasonably could have concluded that 

Ramirez was absent in April because he sought to evade the 

proceedings rather than because he simply had the flu.

The totality of the evidence considered by the trial court is 

not sufficient to support a finding that it was clearly established 
PEOPLE v. RAMIREZ

Liu, J., dissenting

7

Ramirez voluntarily waived his right to be present when he 

went to the hospital to be treated for an overdose. As today’s 

opinion acknowledges, if Ramirez went to the hospital instead 

of court because he “was truly debilitated” (maj. opn., ante, at 

p. 21), then he was not voluntarily absent, and his trial could 

not lawfully proceed without him. To find him voluntarily 

absent under the proper legal standard, the court would have to 

have been persuaded that Ramirez was malingering. It would 

have to have concluded that Ramirez did not need hospital 

treatment and knew as much, but that he chose to go with his 

mother anyway for the purpose of evading that day’s 

proceedings. The thin record before us does not contain 

“ ‘ “substantial” proof’ ” that it was “ ‘highly probable’ ” Ramirez 

sought medical care in an effort to avoid his trial. 

(Conservatorship of O.B., supra, 9 Cal.5th at pp. 1006, 998, 

italics omitted.) Finding Ramirez voluntarily absent was error.

II.

Even if the court were right to affirm the finding of 

voluntary waiver, that would not “end our inquiry regarding the 

propriety of the trial court’s decision to proceed with the trial” 

in his absence. (Espinoza, supra, 1 Cal.5th at p. 75.) “[T]he 

decision whether to continue with a trial in absentia . . . rests 

within the discretion of the trial court” and is subject to review 

for abuse of discretion. (Ibid.) Before deciding to try a defendant 

in absentia, “[t]he court must consider the likelihood that the 

trial could take place with the defendant present, the difficulty 

of rescheduling, the inconvenience to jurors, and the burden on 

the government and others.” (U.S. v. Benabe (7th Cir. 2011) 654

F.3d 753, 769.) A trial court “may exercise its discretion to 

proceed ‘only when the public interest clearly outweighs that of 

the voluntarily absent defendant.’ ” (U.S. v. Bradford (11th 
PEOPLE v. RAMIREZ

Liu, J., dissenting

8

Cir. 2001) 237 F.3d 1306, 1313, quoting Tortora, supra, 464 F.2d 

at p. 1210.) Given the importance of the constitutional rights at 

stake, a trial court that decides to try the defendant in absentia 

must make a record adequate to enable review.

The trial court here undertook no such analysis and made 

no such record. After finding Ramirez voluntarily absent, the 

court declared without further discussion that it was “going to 

proceed with this trial in his absence,” and it denied his motion 

for a one-day continuance.

I agree with Justice Smith that “[a] continuance was 

clearly warranted here.” Nothing in the record supports the 

conclusion that the public interest in proceeding that day 

outweighed Ramirez’s interest in being present for his trial. The 

Attorney General notes that the jurors and witnesses were 

present, but there is nothing to suggest that any witness or 

evidence would have become unavailable if the trial had been 

continued by one day or that a one-day continuance would have 

posed a specific hardship to the court, the witnesses, or the jury. 

The Attorney General also says the court could not be sure 

Ramirez would show up the next day if it granted a continuance. 

But no court faced with an absent defendant can be certain the 

defendant will return if it grants a continuance. The court here 

had no particular reason to believe Ramirez would not be 

present the next day, and in fact he did return then. 

The only circumstance specific to this case that the 

Attorney General has cited for why the public interest favored 

proceeding with trial on the day of Ramirez’s absence was that 

the prosecutor had plans to be out of town the following 

afternoon. But the trial court did not inquire into the 

prosecutor’s reason for being out of town and had no evidence 
PEOPLE v. RAMIREZ

Liu, J., dissenting

9

from which it could reasonably conclude that the prosecutor’s 

interest in being out of town outweighed Ramirez’s interest in 

being present for his trial, having the opportunity to testify in 

his defense, and confronting the witnesses against him.

Today’s opinion declines to reach this issue on the ground 

that Ramirez forfeited his argument that the denial of his 

continuance motion was error. (Maj. opn., ante, at p. 22, fn. 7.) 

Ramirez sought a continuance in the trial court and later moved 

for a mistrial after the court proceeded in his absence. He 

argued in the Court of Appeal that the denial of his continuance 

request was error, and he pressed the claim as well in his 

petition and briefing before us. The Attorney General has never 

argued that Ramirez forfeited his continuance claim; instead, 

the Attorney General contests the claim on the merits in his 

briefing and agreed at oral argument that the claim is not 

forfeited.

In concluding the issue has been forfeited, the court says 

Ramirez did not adequately raise the continuance issue in his 

petition for review. While it is true that Ramirez might have 

referred to the continuance issue more clearly in his formulation 

of the issues presented for review, it is referenced in the two 

issues presented by his petition (Cal. Rules of Court, 

rule 8.516(b)(1)), and he argues it repeatedly in the petition 

elsewhere. Issue No. 1 of Ramirez’s petition for review asks 

whether the Court of Appeal erred in affirming the trial court’s 

decision to find him voluntarily absent “without conducting an 

evidentiary hearing regarding the circumstances of [his] 

absence.” One of the reasons his counsel asked for a continuance 

was to allow time for that evidentiary hearing. Issue No. 2 asks 

whether the violation of Ramirez’s “constitutional right to be 

present for trial” was prejudicial error, and the issue of prejudice 
PEOPLE v. RAMIREZ

Liu, J., dissenting

10

is informed by whether the trial court properly denied a 

continuance.

In any event, Ramirez’s substantive arguments fairly 

indicated he was challenging the trial court’s denial of a short 

continuance, not just the trial court’s determination that he was 

voluntarily absent. Specifically, Ramirez argued in his petition 

that the trial court erred by “refus[ing] to continue trial to the 

following day” when he did not appear in court. He claimed he 

was “deprived of his constitutional right to be present at trial” 

when the trial court “determine[ed] that petitioner was 

voluntarily absent, without continuing the matter for one day.” 

Citing our decision in People v. Gutierrez (2003) 29 Cal.4th 1196, 

he argued that “a trial court should not ‘summarily plung[e] 

ahead’ with trial in a defendant’s absence.” (Id. at p. 1209.)

Forfeiture doctrine serves to prevent unfair surprise to the 

other party and to promote the orderly presentation of issues to 

the court. (See People v. Gibson (1994) 27 Cal.App.4th 1466, 

1468 [“The rule that contentions not raised in the trial court will 

not be considered on appeal is founded on considerations of 

fairness to the court and opposing party, and on the practical 

need for an orderly and efficient administration of the law.”].) 

Neither concern is present here.

In sum, the continuance issue has been fully briefed, and 

I see no sound basis for declining to address it. I would address 

the issues properly raised and briefed by the parties, and I 

would hold that the trial court abused its discretion by 

proceeding in Ramirez’s absence rather than granting his 

motion for a one-day continuance so that he could return to 

court.
PEOPLE v. RAMIREZ

Liu, J., dissenting

11

III.

An erroneous denial of a federal constitutional right that 

does not require automatic reversal is harmless only if we can 

conclude beyond a reasonable doubt that it did not affect the 

verdict. (Chapman v. California (1967) 386 U.S. 18, 24.) An 

error of state law is harmless if it is not “reasonably probable 

that a result more favorable to the appealing party would have 

been reached in the absence of the error.” (People v. Watson

(1956) 46 Cal.2d 818, 836.) On the record before us, I would 

conclude that the trial court’s decision to try Ramirez in 

absentia was prejudicial under either standard.

The most substantial pieces of evidence linking Ramirez 

to the attempted burglary were a blurry video from a 

surveillance camera at the victim’s home in which the burglar’s 

face is not visible and the fact that when Ramirez was arrested 

five weeks after the crime, he was wearing an Oakland Raiders 

hat that appeared similar to one worn by the burglar on the 

surveillance tape. Ramirez’s defense consisted largely of the 

argument that he was not the person on the surveillance video. 

Defense counsel told the jury he would “invite you to look at that 

video of the person that’s removing this window screen. I would 

submit to you that it’s not my client, doesn’t look like him at all.” 

Because the court erroneously proceeded with trial in Ramirez’s 

absence, defense counsel had to argue to the jury that Ramirez 

was not the burglar on the surveillance video at a time when 

Ramirez was not present for the jury to compare his features to 

those of the person on the tape.

“ ‘[I]t is only the most extraordinary of trials in which a 

denial of the defendant’s right to testify can be said to be 

harmless beyond a reasonable doubt.’ ” (People v. Allen (2008) 
PEOPLE v. RAMIREZ

Liu, J., dissenting

12

44 Cal.4th 843, 872.) This trial was not extraordinary in that 

way. In total, the prosecutor called two witnesses, and the 

entire presentation of evidence took just over an hour and 

occupied roughly 30 pages of the reporter’s transcript. Aside 

from the blurry surveillance video and the fact that Ramirez was 

wearing a hat five weeks after the burglary with the same 

coloring as the one worn by the burglar and the logo of a local 

football team, the only evidence presented against him was a 

short video of his conversation with police officers when they 

arrested him. But, as Justice Smith explained, “Ramirez never 

directly admitted he had burgled [the victim’s] house on the 

night in question. Initially, Ramirez denied any knowledge of 

the incident. . . . After a significant amount of pressing from 

[Officer] Bowly, Ramirez said he was probably just looking. 

Later, Ramirez said he did not remember the incident. . . . 

During the questioning, Bowly never showed Ramirez a picture 

of [the victim’s] house or the surveillance tape; nor did he take 

Ramirez by the house. Bowly also acknowledged he was not 

positive Ramirez knew which incident Bowly was talking 

about.” (Italics omitted.) If Ramirez had been able to testify, he 

could have explained his equivocal statements to the arresting 

officer.

Because Ramirez was absent, the jury had no opportunity 

to evaluate the credibility of any argument he might have made 

that he was not the person on the surveillance video. Instead, 

the defense called no witnesses, and after about six hours of 

deliberations, the jury found Ramirez guilty of attempted 

burglary. That the jury’s deliberations took four times as long 

as the prosecutor’s presentation of evidence further suggests 

this was not an easy case. And Ramirez’s testimony would likely 

have been significant in light of the limited evidence against 
PEOPLE v. RAMIREZ

Liu, J., dissenting

13

him. In sum, there was a reasonable probability of a different 

outcome if the trial court had not decided to try Ramirez in 

absentia, and the judgment must be reversed.

I respectfully dissent.

LIU, J.
1

PEOPLE v. RAMIREZ

S262010

Dissenting Opinion by Justice Kruger

I agree with the majority opinion, as far as it goes. A 

defendant who fails to appear at trial after voluntarily ingesting 

illicit drugs is not necessarily voluntarily absent. But as the 

majority says, in this particular case there was substantial 

evidence to support the trial court’s finding of voluntary absence 

under the circumstances.

The majority, however, declines to consider the natural 

follow-on question: Whether the trial court should have granted 

a short continuance rather than conducting the one-day trial 

entirely in the defendant’s absence. I would reach that issue 

and I would reverse for the reasons given in parts II and III of 

Justice Liu’s dissent.

 KRUGER, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Ramirez

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) XX NP opn. filed 3/5/20 – 5th Dist.

Rehearing Granted

__________________________________________________________ 

Opinion No. S262010

Date Filed: December 5, 2022 

__________________________________________________________ 

Court: Superior

County: Tuolumne

Judge: James A. Boscoe

__________________________________________________________ 

Counsel:

Jacquelyn Larson, under appointment by the Supreme Court, and 

Jennifer Mouzis, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters 

and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. 

Farrell, Assistant Attorney General, Michael A. Canzoneri, Louis M. 

Vasquez, Amanda D. Cary, F. Matt Chen and Rachelle A. Newcomb, 

Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Jacquelyn Larson

Central California Appellate Program

2150 River Plaza Drive, Suite 300

Sacramento, CA 95833

(916) 441-3792

Amanda D. Cary

Deputy Attorney General

2550 Mariposa Mall, Room 5090

Fresno, CA 93721

(559) 705-2305