Concepcion

I agree with the majority that the period of a defendant’s voluntary absence from trial precipitated by the defendant’s escape from custody includes the time it reasonably takes to return the defendant to court after he or she is again in custody. I also agree a trial court’s factual determination that a delay in returning a defendant to court was reasonable must be upheld if supported by substantial evidence. But here the trial court made no such factual determination, simply telling the parties it had been informed defendant could not be brought back to court until the day after his recapture. That statement is not a factual determination and, as it did not follow an evidentiary hearing, it certainly is not a factual determination reviewable for substantial evidence.

Nonetheless, I believe the judgment must be affirmed because defendant never argued to the trial court that the authorities unreasonably delayed his return. Under the circumstances, defendant’s failure to make that argument implied he agreed the delay was reasonable, and the court therefore had no obligation to consider the matter further. People v. Connolly (1973) 36 Cal.App.3d 379 [ 111 Cal.Rptr. 409 ], which…

Under Penal Code section 1043, subdivision (b)(2), 1 a noncapital felony trial may continue in a defendant’s absence, if the defendant was present when trial began, then later voluntarily absents himself.

Defendant’s jury had been sworn, but on the morning of the first day evidence was to be taken, he escaped before court convened. Several hours later he was apprehended in a nearby community and the court was informed he could be returned to court the following morning. That afternoon the trial proceeded in his absence.

A divided Court of Appeal reversed, reasoning that “{defendant’s\ absence ceased to be voluntary once he was returned to custody.”

To the contrary, we hold that an escapee’s voluntary absence includes the time reasonably required to return him to court after apprehension.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with offenses arising from two separate incidents. In the Lopez case, it was alleged that he carjacked a vehicle belonging to Hector Lopez, demanding his car key at gunpoint. Soon after Lopez complied, police saw defendant driving Lopez’s car. A high-speed chase ended when defendant crashed the car into a tree. A gun was…