ZELON, J.
When a defendant failed to appear for the final day of an ongoing trial, the trial court declared him to be voluntarily absent and proceeded with the trial. At a break, the court was informed by defense counsel that the defendant was not present because he had been taken into custody the night before. The court continued with the trial despite the defendant's involuntary absence. The court's two decisions to proceed—the first made without any evidence that the absence was voluntary, and the second made in the face of evidence that the absence was involuntary—violated both Penal Code
Anto Yeretzian was charged with second degree commercial burglary (§ 459), grand theft of personal property (§ 487a); and petty theft with priors (§ 666). His trial proceeded in a procedurally uneventful manner through July 29, 2009, and at the end of the court day, the trial court ordered Yeretzian to appear the following morning.
On the morning of July 30, 2009, Yeretzian did not appear at 9:00 a.m. At 9:20 a.m., the court asked the parties for information on Yeretzian's whereabouts. Yeretzian's counsel described her unsuccessful efforts to reach Yeretzian by telephone that morning and stated that she knew of no circumstances that had arisen to prevent him from attending. The court said, "All right then we'll proceed. If counsel is looking at the Code[,] it's probably [section] 1043 of the Penal Code which allows us to proceed in the defendant's absence. And we will proceed. And should he appear, he will take his place at the seat and at the table and when we conclude this morning's arguments of counsel and my final instructions, I will inquire of the defendant as to the reason for his absence or delay—delay. And then decide whether he's to remain in the courtroom or in the hallway adjacent to the courtroom or whether it would be more appropriate to take him into custody."
The jury entered the courtroom, and the court addressed jurors concerning Yeretzian's absence, stating, "You were ordered back and you've all complied. However, the defendant was ordered back and has failed to appear or contact us. However, we are legally permitted to go forward in his absence, and that we're going to do."
Counsel gave closing arguments, and the court gave final instructions to the jury. At 9:45 a.m., the jury retired for deliberations. At 10:55 a.m., the jury submitted a question, and the court answered it in writing. At 11:35 a.m., the jury returned a verdict of guilty on the three charges. After the verdicts were read, the court told the jurors, "Ladies and gentlemen, your work is just about finished. We have had an unusual situation which is observed. This morning the defendant has failed to appear. I have to handle that, and I need your help briefly. So we're going to put somebody up here to talk to you, a little bit of further evidence. It should be a fairly brief proceedings, but we have to get the one witness who will testify and it takes us a moment to do that, the noon hour in effect. So I'm going to ask you to come back at 1:30. I think it will be a fairly brief proceedings. But we have unusual circumstances and I have to handle it and I need your help. So have a pleasant lunch, I think I'll say that at this point, and be here at 1:30."
After the noon recess, but before the jury entered the courtroom, Yeretzian's counsel informed the court that Yeretzian's mother had just spoken to her downstairs in the courthouse: "I was approached by Mrs. Yeretzian, the defendant's mother, downstairs as I was coming up on the elevator. She informs me that Mr. Yeretzian was taken into custody last night possibly on a [Welfare and Institutions Code section] 5150 hold. He's in the Montebello substation. I informed her that the best bet for Mr. Yeretzian is to get here as soon as possible if he is released from custody. She asked me if it was possible for him to be transported here from custody. I wasn't able to give her an answer. But evidently that is where he was beginning from last night. That's where he remains today."
The court commented that this information was "[i]nteresting," but said, "I'm not going to hold this jury. We're not going to sit here and wait. We are going to proceed. You made the record on that." The court proceeded to conduct the trial on Yeretzian's prior conviction. The jury was instructed; it retired to deliberate at 2:05 p.m.; and at 2:25 it returned with the verdict that the prior felony allegation was true.
At sentencing the court acknowledged that Yeretzian was unable to appear on the final day of trial: "Mr. Yeretzian failed to appear on the last day, but I think there's problems alluded to with methamphetamine. He was, I guess, picked up and arrested. That's the reason he couldn't appear on the final day of trial." The court sentenced Yeretzian to four years in prison. Yeretzian appeals.
"A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043." (People v. Concepcion (2008) 45 Cal.4th 77, 81 (Concepcion).) A defendant's presence is required if the court proceeding bears a reasonable and substantial relation to his full opportunity to defend against the charges.
Section 1043, subdivision (b)(2) permits a court in a noncapital felony case to proceed with trial in a defendant's absence, if the defendant is present when the trial begins but later voluntarily absents himself or herself. When a trial court elects to proceed with trial in a defendant's absence, the appellate court determines "whether, under the totality of the circumstances, the trial court's determination" that the defendant was voluntarily absent "was supported by substantial evidence." (Concepcion, supra, 45 Cal.4th at p. 84.) We conclude that the court's determination was not supported by substantial evidence.
Because proceeding with a trial in the absence of a defendant potentially violates fundamental constitutional rights, the California Supreme Court has cautioned trial courts not to act precipitously when confronted with a defendant's absence. "A defendant's right to presence is `fundamental to our system of justice and guaranteed by our Constitution. [Citation.] Thus, a trial court should not `summarily plung[e] ahead with trial in a defendant's absence. [Citation.]" (People v. Gutierrez (2003) 29 Cal.4th 1196, 1209.) Ordinarily "a continuation of at least a few hours in order to locate [a] defendant is appropriate." (People v. Connolly (1973) 36 Cal.App.3d 379, 385 (Connolly); see also Kimes v. United States (D.C. Ct.App. 1989) 569 A.2d 104, 109 (Kimes) ["trial courts customarily delay the proceedings to enable counsel and the court's marshals to attempt to locate a missing defendant [citations], and appellate courts encourage such delay"].)
Contrary to the guidance given by the Supreme Court, the trial court here speedily proceeded with trial in Yeretzian's absence. When the court was first confronted with Yeretzian's failure to appear at the start of the court day, the court had little information. Yeretzian was a mere 20 minutes late to court, and from this record it appears that he had no history of late appearances or disregard for court proceedings. Counsel had been unable to reach him by telephone, and she was unaware of anything that might have occurred to cause Yeretzian's absence. The trial court did not pause the proceedings for a few hours—or even a few minutes—to permit counsel to attempt to track down Yeretzian or to contact his family members. This was despite the fact that Yeretzian's mother apparently attended nearly every court session, according to a later comment by the trial court. Instead, despite possessing no information as to the reason for Yeretzian's absence, the court immediately concluded that it was permitted to proceed in Yeretzian's absence by section 1043. The court said, "[I]t's probably [section] 1043 of the Penal Code which allows us to proceed in the defendant's absence. And we will proceed," and then discussed its options for potentially punishing Yeretzian when and if he appeared.
Before proceeding with trial in a defendant's absence, "sufficient facts must be before the court to establish what reasonably appears to be a prima facie showing of voluntary absence." (Connolly, supra, 36 Cal.App.3d at p. 385.) Here, the facts before the trial court did not support its implicit finding that Yeretzian had voluntarily absented himself. All the court knew was that Yeretzian was aware of the ongoing court proceedings and had been ordered back, but that he was 20 minutes late and had not contacted his attorney, the court, or the prosecutor. Being 20 minutes late without notice, without more, did not constitute sufficient facts to establish a prima facie showing of voluntary absence. The court had no factual basis before it on which to predicate a conclusion that Yeretzian was voluntarily absent. As the court's decision to proceed with trial at 9:20 a.m. was unsupported by any evidence that the absence was voluntary, the court erred.
After the noon recess, and before the trial on Yeretzian's priors, the court received information from defense counsel that Yeretzian had been taken into custody by police the night before and was in police custody at the Montebello substation. The trial court was now in possession of information that directly contradicted its earlier implicit conclusion that Yeretzian had voluntarily absented himself from the proceedings. The information also meant that Yeretzian was within reach of the court and could be ordered to be transported to court. Despite having just learned that its earlier implicit conclusion that Yeretzian's absence was voluntary had been incorrect, the trial court did not halt the proceedings for further investigation or until Yeretzian could be transported to court. The court called counsel's information "interesting" but stated that it had no intention of waiting or delaying the proceedings,
Although the Attorney General argues that a defendant should be deemed voluntarily absent when he or she is being held by the police because the defendant's absence "is a direct result of his own conduct that caused him to be arrested and placed into custody," there is no basis in fact or law for such an contention. The fact that the defendant was arrested on another offense while in trial for this one hardly demonstrates, as the Attorney General tries to suggest, that Yeretzian was trying to "`withdraw himself from the courts of this country and to break up a trial already commenced.'" (Diaz v. United States (1912) 223 U.S. 442, 457.) The Attorney General's argument—which amounts to an assertion that being held in custody should be considered a voluntary act because one chose to engage in allegedly criminal activity—is flawed for multiple reasons. The argument disregards the lack of equivalency between an arrest and a conviction and ignores the possibility here that Yeretzian's custodial status was attributable to a psychiatric hold under Welfare and Institutions Code section 5150. Moreover, it would do violence to any notion of voluntariness for the purposes of section 1043, and would eviscerate other legal determinations that involve notions of custody and voluntariness. The Attorney General's claim that the evidence here demonstrated that Yeretzian voluntarily absented himself from the court proceedings is meritless.
The Attorney General's contention that Yeretzian's claim is forfeited because his counsel failed to object to the continuation of the trial is similarly unpersuasive. We have reviewed the decision on which the Attorney General relies as support for this proposition, People v. Howze (2001) 85 Cal.App.4th 1380. In Howze, the Court of Appeal held that the defendant "was estopped to assert that the trial court acted outside its jurisdiction and violated his rights when it commenced trial in his absence because he consented to the court starting trial in his absence, his absence was caused by his own deliberate conduct and was a deliberate choice on his part with knowledge of the consequences, and because he later chose to participate in the proceedings at trial when he believed it was in his interest to do so without making any objection on jurisdictional or constitutional grounds." (Id. at p. 1388.) As this characterization makes clear, there are no relevant factual similarities between these two cases. Moreover, in the portion of the decision to which the Attorney General refers, the court did not state that the defendant's counsel's failure to object forfeited the defendant's claim; instead, the court stated the question it was resolving as follows: "The next question before this court is whether a defendant, who was in custody, and who did not waive his appearance at the time of commencement of trial in strict formal compliance with state law, can later complain on jurisdictional or constitutional grounds that the trial commenced in his absence, when defendant was advised that a failure to leave his cell to be transported to court for the commencement of trial would be considered a waiver of his right to be present, and subsequently chose not to leave his cell to be transported to court." (Id. at pp. 1395-1396.) The court concluded, "We find that a defendant who refuses to come to court under such circumstances is estopped to assert that the trial commenced improperly in his absence." (Id. at p. 1396.) In Howze, the defendant, who was in custody, repeatedly refused to appear in court, disrupted court proceedings when he did appear by screaming and falling to the ground, repeatedly told the judge that he would not come back to court, and declined to come to court multiple times even when he was advised in videotaped proceedings that his failure to attend would be deemed a waiver of his right to be present at trial. (Id. at pp. 1388-1393.) Even the most cursory reading of Howze demonstrates that the fact that the defendant's counsel did not object to the defendant's absence was not, by any stretch of the imagination, the defining factor in the court's conclusion that the defendant was estopped from appealing the commencement of trial in his absence. Howze does not provide a basis to find forfeiture of Yeretzian's claim.
When the trial court elected to continue with the trial on the morning of Yeretzian's absence, the presentation of evidence had concluded, and what remained was the presentation of closing argument, final instructions to the jurors, deliberations, and the rendition of the verdict. In the afternoon, the trial court conducted the remaining portion of the bifurcated proceeding, the priors trial, before the jury in Yeretzian's absence. The California Supreme Court has instructed that "[u]nder the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless beyond a reasonable doubt standard set forth in Chapman v. California," and that error under section 1043, being an error of state law, "is reversible only if `"it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." [Citation].' [Citations.]" (Davis, supra, 36 Cal.4th at pp. 532-533.)
In assessing prejudice, the Court of Appeals for the District of Columbia Circuit has emphasized that "we must keep in mind the importance of a defendant's presence at all stages of trial. Indeed, this aspect of a trial has constitutional prestige in the Sixth Amendment guarantee of the right to confront adverse witnesses—in good part a constitutional recognition of a psychological influence. Though perhaps to a less degree, the same influence pertains to the right of confrontation of defendant and jury, aside from the usefulness the accused may be to his counsel." (Wade v. United States (D.C. Cir. 1970) 441 F.2d 1046, 1050 (Wade).)
For reasons similar to those stated in Wade, supra, 441 F.2d 1046, the Court of Appeals for the Tenth Circuit found prejudicial the exclusion of a defendant from jury instructions, closing arguments, and the rendition of the verdict. The defendant's absence was prejudicial not only because his presence might have allowed him to assist counsel but also because of the psychological function of a defendant's presence in court during crucial phases of trial. (Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 395-396 (Larson); see also United States v. Fontanez (2d Cir. 1989) 878 F.2d 33, 38 [failure to ensure defendant's presence in the courtroom while a deadlocked jury was further instructed deprived him of the psychological function of his physical presence on the jury at that crucial stage of trial].) The Supreme Court of Hawaii found it prejudicial to be excluded from jury instructions, closing arguments, and the rendition of the jury's verdict, noting the psychological importance of being "seen by the jury." (State v. Okumura (Hawaii 1977) 570 P.2d 848, 853.)
Another aspect of the prejudice created by a defendant's absence is the implicit invitation it presents to the jury to speculate unfavorably about his absence. The Wade court observed the "reasonable possibility that the jury speculated adversely to the defendant about his absence from the courtroom." (Wade, 441 F.2d at p. 1050, fn. omitted.) The Supreme Court of Wyoming has described this aspect of prejudice as "the negative influence which may be created by the defendant's `empty chair.'" (Seeley v. Wyoming (Wyo. 1998) 959 P.2d 170, 179.)
The rendition of the verdict is often recognized as a particularly crucial moment for a defendant to be present, and the exclusion of a defendant from this crucial phase of trial has long been recognized as a constitutional deprivation of great seriousness. More than 130 years ago, a Kentucky court expressed the importance of a defendant's presence at the reception of the verdict: "The presence of the accused is not a mere form. It is of the very essence of a criminal trial not only that the accused shall be brought face to face with the witnesses against him, but also with his triers. He has a right to be present not only that he may see that nothing is done or omitted which tends to his prejudice, but to have the benefit of whatever influence his presence may exert in his favor. And at no time in the whole course of the trial is this right more valuable than at the final step when the jury are to pronounce that decision which is to restore him to the liberty of a citizen, or to consign him to the scaffold or to a felon's cell in the state prison. He has a right not only to see and know that the whole jury is present assenting to the verdict, but by polling to demand face to face of each juror whether the verdict is his verdict, and to object to it unless each member of the jury shall answer for himself that the verdict is his." (Temple v. Commonwealth (Ky.App. 1879) 77 Ky. 769; see also Commonwealth v. Ashe (Pa. 1950) 70 A.2d 625, 628 [same]; Kimes, supra, 569 A.2d at p. 111 [same].)
More recently, the Alaska Supreme Court described the prejudicial impact of one a defendant's absence at the rendition of the verdict: "A substantial right was affected by Lee's being absent when the jury returned its verdict. Had he been present he could have insisted on a poll of the jury being taken. [Footnote.] Lee was deprived of the right personally to confront the jury. . . . Lee's absence at the return of the verdict was significant. The psychological distinction between a general poll in his absence, and an individual poll requiring each juror to assume the burden of his decision and affirm it in the defendant's presence is not a minor one." (Lee v. State (Alaska 1973) 509 P.2d 1088, 1094 (Lee).) The Court of Appeals for the District of Columbia has observed, "When a jury returns to the courtroom, faces the accused, and, typically, is subject to a poll of the verdict, the psychological influence of the eye-to-eye contact between juror and defendant may be significant enough to cause a juror to change his or her mind when outside the pressure of the jury room." (Kimes, supra, 569 A.2d at p. 111.)
Here, Yeretzian had been present all along, even testifying in his own defense, and then suddenly—at the time that the jury was to decide whether he had committed the acts with which he was charged, the moment that they would have to listen to summations and take a last look at the defendant before deciding on a verdict—he suddenly disappeared. Moreover, the jury was told that this absence was unauthorized and that Yeretzian had disobeyed the judge's order to be present. The jury was not instructed to disregard Yeretzian's absence. Moreover, there is a substantial likelihood that a reasonable jury would conclude—given the court's statement that Yeretzian had been ordered back but, unlike the jury, did not comply with the court's order—that Yeretzian had run away when faced with the moment that the jury would make its decision on the charges against him. And when the time came for the jury to deliver its verdict, he was not there, and the jury was not polled, so the jurors were not subjected to the final step of affirming their verdict individually while being confronted by Yeretzian. (See Lee, 509 P.2d at p. 1094; Kimes, supra, 569 A.2d at p. 111.)
While recognizing the seriousness of the constitutional error, we nonetheless conclude that under the specific circumstances presented here, the error in proceeding with the trial was harmless beyond a reasonable doubt. In the morning session, the trial on the substantive offenses concluded. Yeretzian was charged with second degree commercial burglary, grand theft, and petty theft with priors based on an incident in which he broke into a warehouse and at the very least disabled two surveillance cameras. Footage from those cameras showed Yeretzian in the warehouse, and Yeretzian confirmed that he did "just basically what you see on the photographs and the videotapes." Yeretzian acknowledged that he was wearing a security jacket
Yeretzian testified that after he entered the warehouse he "batted" one camera down until it hung by the cable, then he cut the cable so that the camera fell; he tore the other off the wall and dropped it. When asked why that destruction was necessary if he was just looking for a bathroom, he said, "Because I didn't want them to know that I was going in doing that." He explained that he broke down the front door with a safe "so I could leave the place." He denied taking the cameras with him when he left.
The prosecutor observed that the video footage showed that Yeretzian had entered the facility at between 2:30 and 3:00 in the afternoon, but that the safe was not being pushed around until 8:42 in the evening, and Yeretzian agreed with that timeline. When asked what he was doing in the business for six hours, he said he was not there all that time—he left and then returned later. The prosecutor asked why he returned to the business later and was pushing the safe around, and Yeretzian answered, "I was looking around to take something and I didn't see anything good to take so I left." The prosecutor clarified that Yeretzian had returned for the purpose of stealing: "So the second time you entered the business you were going to try and take something; correct?" Yeretzian said, "I was looking."
In the course of his testimony, therefore, Yeretzian had admitted the elements of burglary: that he entered a building with the intent to steal someone's property and to deprive the owner of that property. (§ 459; CALJIC No. 14.50.) He also admitted two of the three elements of theft by larceny for the purposes of the two theft charges:
In the face of this evidence, we cannot conceive of any reasonable jury not concluding that Yeretzian committed burglary, grand theft and petty theft, no matter how much psychological influence Yeretzian could have exerted by being present in the courtroom during the final day of trial. Although Yeretzian claims that if he had been present, "it is hard to imagine that defense counsel's closing argument would have been as atrocious as it was," we are unable to identify meaningful avenues for arguing Yeretzian's cause that survived Yeretzian's self-devastating testimony. We therefore conclude that in this case, the court's decision to proceed with closing arguments and the rendition of the verdict in Yeretzian's absence was harmless beyond a reasonable doubt. With respect to the statutory error, it follows from this conclusion that it is not reasonably probable that a result more favorable to Yeretzian would have been reached had he been present.
After the noon recess, the jury was brought in for the limited purpose of determining, as the verdict form said, whether the prior felony allegation was true. A paralegal from the Department of Justice testified about Yeretzian's record from the CLETS computer system, with Yeretzian's identification number on it, and then testified from the court docket sheets pertaining to the prior conviction, testified to the offense that the defendant was convicted of, and connected Yeretzian with the prior offense by comparison of case number, names, dates of birth, and dates of conviction. Defense counsel asked no questions. The court instructed the jury that Yeretzian was the person whose name appeared on the documents admitted to establish the conviction, then charged the jury with determining whether Yeretzian had been convicted of a violation of section 487, subdivision (d), theft of a firearm, on February 16, 1999.
Yeretzian characterizes the priors trial as "an entire trial before a jury," and observes that in Crosby v. U.S. (1993) 506 U.S. 255, the United States Supreme Court held that even when a defendant has fled prosecution prior to the commencement of trial, his right to be present at trial is absolute, such that any judgment from a trial held in his absence must be reversed. Crosby, however, stands for the proposition that Federal Rule of Criminal Procedure 43 does not permit the trial in absentia of a defendant who has absconded before trial (id. at p. 256), and it does not offer any guidance on what to do in the case of a state trial of a defendant who is present at the commencement of a bifurcated trial but absent for the latter portion. The priors trial, despite the suggestion of separation inherent in that name, is not a distinct trial; it is a division of the defendant's one trial that results from the decision by the trial court that the jury should not hear evidence of a evidence of a defendant's prior conviction during the trial of the currently charged offense due to the risk of undue prejudice to the defendant. (People v. Calderon (1994) 9 Cal.4th 69, 77-78.) When a trial is bifurcated rather than unitary, the same jury sits for the portion of the trial concerning the prior conviction allegations. (§ 1025, subd. (b).) The priors trial, or, more accurately, the second phase of a bifurcated trial, cannot be considered a separate trial such that we can say that the defendant was excluded from an "entire" trial based on the conduct of the priors trial in his absence.
While we again recognize that the error in conducting the priors phase of the trial in Yeretzian's absence constituted an error of constitutional and statutory dimensions, we conclude that on the evidence before us, this error was harmless. In light of the extremely limited scope of the proceeding to determine whether Yeretzian had suffered the prior conviction that was alleged in the information, we cannot discern how Yeretzian's presence could have altered the outcome.
Yeretzian had acknowledged in the substantive portions of the trial that he had been convicted of a felony in 1999, and although this information was not before the jury, the 1999 felony he admitted was the same 1999 felony conviction that was at issue in the priors trial. Because Yeretzian admitted the conviction for the purpose of the charge of petty crime with a prior conviction, we can safely presume that Yeretzian knew that he had in fact suffered a prior felony conviction in 1999 and that there existed no real question as to whether in fact the prior conviction was true. To the extent that Yeretzian could have assisted his counsel in challenging the documentary record as insufficient evidence of his conviction, it is clear that the defense had access to Yeretzian's record long before the priors trial—it was admitted into evidence at the preliminary hearing. Accordingly, counsel had ample opportunity to discuss its contents with Yeretzian and to seek his assistance with respect to any challenge to it. Assuming that counsel did seek Yeretzian's input, Yeretzian's presence at the priors trial could have added little to his counsel's ability to challenge the evidence of his prior convictions, which was entirely documentary. In this respect, the situation is like that in Davis, supra, 36 Cal.4th at page 533, where the Supreme Court found defendant's unconstitutional exclusion from a pretrial hearing concerning a recording and transcript to be harmless because defense counsel possessed the tape and proposed transcript well before the hearing and could have obtained any assistance he could have offered in advance. "Assuming they did so [consulted defendant before the hearing about unintelligible portions of the tape], defendant's presence at the hearing would have added little to his attorneys' ability to argue the admissibility of the excerpts." (Ibid.) Even if there was no opportunity to discuss the evidence in advance, the Supreme Court said, there was no way on the record to determine whether the defendant would have been able to clarify the unintelligible language on the tape; whether the defendant's proposed language would have been accepted by the prosecutor; or whether the resulting transcript of the tape would have been any less prejudicial than the one that was admitted. (Ibid.) The Supreme Court concluded that it "seem[ed] equally reasonable to conclude that [the defendant's] clarifications would have done nothing to make the tape less incriminating or perhaps made it even more incriminating." (Ibid.) Here, too, it seems at least equally reasonable to conclude that Yeretzian would not have possessed information to challenge his record and court docket from the prior felony that he had admitted for the purpose of the petty theft with priors charge as it would be to conclude that he would have possessed such information.
We are mindful of the fact that a defendant's absence from trial is often prejudicial not only because the defendant's presence might have allowed him to assist counsel but also because of the psychological function of a defendant's presence in court during crucial phases of trial, as discussed above. (Larson, supra, 911 F.2d at pp. 395-396.) But in a phase of trial that was so narrowly confined that the jury was charged with determining only whether the papers introduced into evidence about him established that he had suffered the alleged prior felony conviction that was set forth on those papers, we fail to identify any psychological impact that Yeretzian could have made. Accordingly, we conclude that under these circumstances, the constitutional error was harmless beyond a reasonable doubt and that there is no reasonable probability that a different outcome would have been reached in the absence of the error.
Yeretzian contends that the trial court was biased against him, and that this bias was made evident by the fact that the judge assumed that his absence was voluntary in the morning and then continued with the trial in the afternoon despite knowing that Yeretzian was in custody. "A trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review." (People v. Guerra (2006) 37 Cal.4th 1067, 1111-1112.) While the court erred here, the record does not demonstrate a bias toward Yeretzian so as to cause a reasonable person to entertain doubts about the judge's impartiality. (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on other grounds in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349.)
In his reply brief, Yeretzian for the first time argues that the cumulative errors in the trial court combined to rise to the level of reversible error. Points raised for the first time in the reply brief ordinarily are not considered. (Sacramento Cable Television v. City of Sacramento (1991) 234 Cal.App.3d 232, 244.) Even if we were to consider this argument, Yeretzian's claim presents no basis for reversal. The trial court's errors in proceeding with the trial in Yeretzian's absence were, under the circumstances presented by this case, harmless, and they do not combine to create a reversible cumulative error.
The judgment is affirmed.
We concur:
WOODS, Acting P. J.
JACKSON, J.
