People v. Ricalls CA2/3

Filed 4/21/21 P. v. Ricalls CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B303227

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA143699
v.

JAMES LEONARD RICALLS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stacy C.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.
 INTRODUCTION

Defendant James Leonard Ricalls was sentenced to a
prison term of 85 years to life following his conviction for
kidnapping, domestic partner abuse, false imprisonment by
violence, and criminal threats. Defendant refused to appear in
the courtroom during the trial. He now contends, however, that
he is entitled to a new trial because the trial court failed to obtain
a written waiver of presence from him under Penal Code
section 977.1 Defendant also argues the court abused its
discretion by failing to strike one or more of his prior felony
convictions for purposes of sentencing under the Three Strikes
Law. Finding no error, we affirm.

PROCEDURAL BACKGROUND2

By information filed on September 27, 2017, defendant was
charged with five felony counts: vandalism (§ 594, subd. (a);
count 1); kidnapping (§ 207, subd. (a); count 2); domestic abuse
(§ 273.5, subd. (a); count 3); false imprisonment by violence
(§ 236; count 4); and criminal threats (§ 422, subd. (a); count 5).
As to count 3, the information included an enhancement alleging
infliction of great bodily injury under § 12022.7. In addition, the
information alleged defendant had previously committed three
strike offenses in 1989, 2005, and 2011 (§§ 1170.12, subd. (b),
677, subd. (d)), all of which were serious-felony priors (§ 667,
subd. (a)) and prison priors (§ 667.5, subd. (b)), and further
alleged that defendant had been convicted of two additional

1 Undesignated statutory section references are to the Penal Code.
2 Because the facts underlying the convictions are irrelevant to the
legal issues presented, we do not address them.

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prison priors in 1995 and 2001 (§ 667.5, subd. (b)). Defendant
pled not guilty and denied the allegations.
After a jury trial at which he did not testify, defendant was
found guilty of counts 2–5.3 The jury found the great bodily harm
allegation true. And after a bifurcated trial, the jury found all the
prior-conviction allegations true.
The court denied defendant’s motion to strike his prior
convictions under People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero), and sentenced him to an aggregate
indeterminate term of 85 years to life: On count 2 (base count),
the court imposed a sentence of 25 years to life—the third strike
term—with two consecutive five-year enhancements for priors
under section 667, subd. (a)(1), for a total of 35 years to life; on
count 3, the sentence was also a third strike term of 25 years to
life, to be served consecutively; on count 4, the court imposed the
upper term of three years, to be served in state prison; and on
count 5, the court imposed a third strike term of 25 years to life,
to be served consecutively. The court stayed the sentence on
count 4 under section 654.
Defendant filed a timely notice of appeal.

DISCUSSION

1. Defendant waived his statutory right to be present
during the trial.
Defendant asserts that he is entitled to a new trial
notwithstanding his refusal to attend the trial giving rise to the
present appeal. He apparently contends that the court committed
reversible error by failing to obtain a written waiver of presence

3 The court dismissed count 1 in the interest of justice. (§ 1385.)

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from him in conformity with section 977, subdivision (b)(2). We
conclude no written waiver was required.
1.1. Standard of Review
“An appellate court applies the independent or de novo
standard of review to a trial court’s exclusion of a criminal
defendant from trial, either in whole or in part, insofar as the
trial court’s decision entails a measurement of the facts against
the law.” (People v. Waidla (2000) 22 Cal.4th 690, 741; People v.
Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez) [considering
whether a defendant who refuses to leave the court lockup to
attend his trial is “ ‘voluntarily absent’ ” under section 1043,
subdivision (b)(2)].)
1.2. Additional Facts
1.2.1. Pretrial Proceedings
Defendant spent more than two years in custody between
his arraignment in September 2017 and the trial in November
2019. Initially, defendant was represented by a public defender.
The court first called the case for a jury trial on January 9, 2018
and defendant was present in court with counsel. The court
continued the trial to February 6, 2018 at defendant’s request.
On February 6, 2018, defendant was present in lockup but
his counsel expressed doubt about his competence to stand trial
(§ 1368). After a court-appointed physician found defendant
competent to stand trial, the court scheduled the trial to begin on
April 17, 2018.
On April 17, 2018, however, defendant appeared in court
and requested to represent himself at trial and to conduct
additional discovery. The court granted the request. In July 2018,
defendant filed a motion to disqualify the judge under Code of

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Civil Procedure section 170.6, asserting the trial judge was
biased against him. The matter was transferred to a different
judge and proceedings continued. Between April 2018 and
January 2019, defendant represented himself.
On January 17, 2019, the court revoked defendant’s pro per
status and appointed counsel to represent him following a
profanity-laced outburst in the courtroom. The court reset the
pretrial status conference for January 23, 2019 and confirmed the
jury trial would begin on January 24, 2019.
On January 23, 2019, defendant was present in lockup but,
again, his appointed counsel expressed doubt regarding
defendant’s competence to stand trial (§ 1368). The court ordered
the appointment of a physician or expert and adjourned the
criminal proceedings. Defendant subsequently refused to speak
with the appointed physician. Eventually, in July 2019, the court
authorized the release of defendant’s medical records to the
appointed physician.
Also during this period (January to September 2019),
defendant requested to be relieved of counsel and to represent
himself on two occasions. The court heard and denied the first
request and declined to consider the second request on procedural
grounds.
The court-appointed physician submitted his evaluation to
the court in September 2019, concluding defendant was
competent to stand trial. On September 24, 2019, the court
reviewed the medical report and found defendant competent to
stand trial. The court set a pretrial conference for October 24,
2019 and the jury trial for November 13, 2019. The court then
heard and denied another motion by defendant to relieve his
appointed counsel.

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 At defendant’s request, the October 24, 2019 pretrial
conference was trailed to November 8, 2019. On November 8,
2019, defendant again requested to relieve appointed counsel and
to represent himself, which requests the court denied.
1.2.2. The Trial
On November 13, 2019, the cause was called for jury trial.
The bailiff informed the court that defendant did not wish to
change into civilian clothes or start the trial. Defendant was
brought into the courtroom at his own request and renewed his
request to relieve appointed counsel. The court heard and denied
the motion, then advised defendant the trial would proceed.
Defendant said, “I’m not going to be here,” and the court again
advised defendant that he had a right to be present for the
proceedings. Specifically, the court advised, “What we’re going to
do is, when the jury comes, my bailiff … is going to go back and
ask you if you want to dress and come out for trial. If you say ‘no,’
he’s going to come out and tell me, and I’m going [to] come back
and talk to you on the record, just to make sure. And if you don’t
want to come out, we’re to go to trial without you. Do you
understand?” Defendant responded, “Well, it’s fine with me. You
force me to go into trial with somebody I don’t want. It’s on the
record, so I’m not even worried about it.” Defendant then
“spontaneously got up [and] walked out of the courtroom.”
A short time later, the court was ready to begin jury
selection. The court and counsel went to the lockup to speak with
defendant, who began yelling, “Man, see here you go with these
games, man. Won’t you please leave, demon. You playing games.
I don’t have time to play games. This is my life on the line, and
you guys want to play. … Now you’re using outbursts as an
excuse to say ‘I’m not giving you pro per status,’ [inaudible] needs

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to stop, your honor. Grow up and be a man and say ‘I’m going to
give this man his status.’ You cannot force me to go to trial with
this attorney. It is the law.” The court responded, “Okay. I just
want you to understand that we are going to start the trial. As of
right now you are refusing to come out because [appointed
counsel] is your attorney.” Defendant responded, “I do not wish to
go to trial with him.” The court and counsel left the lockup.
Defendant continued to yell for several minutes afterward. The
court found defendant was voluntarily absenting himself from the
proceedings.
The court resumed jury selection and advised the
prospective jurors that defendant had decided not to attend the
trial, as was his right, and that he might make a different
decision later in the proceedings. The court instructed the
potential jurors that they could not use defendant’s absence in
any way against him or consider that fact during deliberations.
Voir dire commenced. After the noon recess, defendant again told
the bailiff, who in turn advised the court, that he would not come
into the courtroom for the trial. Voir dire concluded and 12 jurors
and two alternates were sworn.
On November 15, 2019, the jury trial resumed. Defendant
appeared in the courtroom before the jury entered and presented
the court with a request to disqualify under Code of Civil
Procedure section 170.6. The court denied the request as
untimely. The court again inquired whether defendant wished to
be present for the trial and he declined. Counsel presented
opening statements. Then the prosecution presented the People’s
case against defendant. After the prosecution rested, the court,
counsel, and the court reporter entered lockup to speak with
defendant. The court advised defendant again that he had the

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right to be present in court and, additionally, that he had the
right to testify in his own defense. Defendant pretended to be
asleep and was nonresponsive. Trial proceedings resumed and
the defense rested.
On the next trial date, November 18, 2019, defendant did
not get on the bus that would have transported him from the jail
to the courthouse. Defendant apparently told personnel at the jail
that he did not have to be in court that day. Due to defendant’s
absence, the court adjourned the morning session. Defendant
arrived at the courthouse for the afternoon session but advised
the bailiff that he did not want to participate in the proceedings.
Trial resumed and counsel presented closing arguments. The jury
deliberated and reached a verdict.
The following day, on November 19, 2019, defendant was
present in lockup but refused to come to the courtroom for the
reading of the verdict.
1.3. Defendant was voluntarily absent from the
proceedings.
A criminal defendant has the right to be personally present
at trial under the federal and state Constitutions, as well as
under sections 977 and 1043. (E.g., Gutierrez, supra, 29 Cal.4th
at pp. 1201–1202.) However, under certain circumstances this
right to be present can be waived either expressly or impliedly.
(Id. at p. 1206.) Defendant’s argument relates only to the waiver
of statutory rights.
For felony cases, section 1043, subdivision (b) provides:
“The absence of the defendant in a felony case after the trial has
commenced in his presence shall not prevent continuing the trial
to, and including, the return of the verdict in any of the following
cases: [¶] … [¶] (2) Any prosecution for an offense which is not

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punishable by death in which the defendant is voluntarily
absent.” (See also Gutierrez, supra, 29 Cal.4th at pp. 1202–1203.)
For purposes of section 1043, a jury trial begins with jury
selection. (People v. Granderson (1998) 67 Cal.App.4th 703, 709;
People v. Ruiz (2001) 92 Cal.App.4th 162, 168–169 (Ruiz).)
Several cases have held that custodial defendants may be
deemed “voluntarily absent” under section 1043. (E.g., Ruiz,
supra, 92 Cal.App.4th at pp. 168–169; People v. Howard (1996) 47
Cal.App.4th 1526, 1538–1539, disapproved on other grounds in
People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11.)
“ ‘Unquestionably section 1043, subdivision (b)(2), was designed
to prevent the defendant from intentionally frustrating the
orderly processes of his trial by voluntarily absenting himself.’
([People v.] Connolly [(1973) 36 Cal.App.3d 379,] 384.) In
determining whether a defendant is absent voluntarily, a court
must look at the ‘totality of the facts.’ (Id. at p. 385.)” (Gutierrez,
supra, 29 Cal.4th at pp. 1204–1205.)
Ruiz is instructive on this point. There, as here, the
defendant was in custody but refused to appear before the jury
and attend his trial. Prior to the trial, and in connection with the
trial management conference, the defendant confirmed his desire
to be absent in front of the judge, who twice advised him that
being absent from the trial might be a mistake. The defendant
refused to attend, and the trial proceeded in his absence. On the
second day of the trial, defense counsel confirmed that the
defendant had no desire to attend the proceedings—and had even
threatened violence if the court ordered him to be transported
from the jail to the courthouse. The defendant also told the bailiff
that his photograph could be used for identification purposes. On
the third day of the trial, counsel again confirmed, after having

9
conferred with the defendant that morning, that the defendant
did not want to attend the trial. The jury reached a verdict, and
the defendant was sentenced. (Ruiz, supra, 92 Cal.App.4th at
pp. 164–165.)
On appeal, the defendant claimed the court violated his
statutory right to be present at trial. Specifically, he asserted
that his trial “commenced” in his absence in violation of
section 1043 and he did not execute a written waiver as required
by section 997. (Ruiz, supra, 92 Cal.App.4th at p. 165.) The court
disagreed, explaining “that under section 1043 a defendant is
present when a trial ‘commences’ if ‘the defendant is physically
present in the courtroom where the trial is to be held,
understands that the proceedings against him are underway,
confronts the judge and voluntarily says he does not desire to
participate any further in those proceedings.’ ” (Id. at p. 167.)
Here, as is evident from the factual summary ante,
defendant was present in the courtroom on the day his case was
called for trial. He stated in court, on the record, that he
understood the trial would proceed and that he planned to be
absent from all the trial proceedings. On the subsequent trial
days, defendant confirmed his refusal to attend the proceedings
on multiple occasions directly with the court, with the bailiff, and
with his own counsel.
Because trial commenced in defendant’s presence, the court
was permitted to proceed with the trial in defendant’s absence.
We find no error in the court’s decision to do so.

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 1.4. The court was not required to obtain a written
waiver under section 977.
Defendant claims the court failed to obtain a written
waiver of presence as required under section 977. No written
waiver was required.
The Supreme Court has explained the relationship between
section 977, which permits a defendant to be voluntarily absent
from certain proceedings upon execution of a written waiver in
open court, and section 1043, which permits a trial to proceed in
a defendant’s absence if the defendant is voluntarily absent.
“ ‘ “[S]ection 977, subdivision (b)(1), the subdivision that
authorizes waiver for felony defendants, expressly provides for
situations in which the defendant cannot waive his right to be
present, including during the taking of evidence before the trier
of fact.” ’ (People v. Majors (1998) 18 Cal.4th 385, 415; People v.
Ochoa (2001) 26 Cal.4th 398, 435.) In other words, ‘section 977
requires a defendant to be present at the five fundamental
proceedings and entitles him to be present at all others.’ (Ochoa,
supra, at p. 435.) … [¶] Unlike section 977, subdivision (b)(1),
section 1043, subdivision (b)(1), does not specify ‘certain
fundamental proceedings’ in which a noncapital defendant may
not be absent. (People v. Ochoa, supra, 26 Cal.4th at p. 435;
People v. Majors, supra, 18 Cal.4th at p. 415.) We conclude that
section 977, subdivision (b)(1)’s presence requirement does not
preclude a defendant from being ‘voluntarily absent’ during the
taking of evidence under section 1043, subdivision (b)(2).
Section 977, subdivision (b)(1), provides that under certain
circumstances, a defendant may execute a written waiver of the
right to presence. Under that provision, a trial may commence
even in the defendant’s absence if the defendant executes a

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written waiver. (§ 977, subd. (b).) For example, a defendant may
be absent when the jury is selected, but he cannot be absent from
the entire trial without ever appearing. But when a trial has
commenced in a defendant’s presence, section 1043 applies. As
relevant here, section 1043, subdivision (b)(2), provides that a
defendant’s voluntary absence does not prevent the trial from
continuing. We perceive that these statutes address different
concerns and do not conflict; rather, executing a written waiver
and being voluntarily absent are treated as different events
under these two statutes.” (Gutierrez, supra, 29 Cal.4th at
pp. 1203–1204.)
The Court went on to explicitly reject defendant’s
contention here. “In short, under section 1043, subdivision (b)(2),
a trial court may continue a trial in a custodial defendant’s
absence after the trial has commenced in the defendant’s
presence—without first obtaining the defendant’s written or oral
waiver of the right to presence—if other evidence indicates the
defendant has chosen to be absent voluntarily.” (Gutierrez, supra,
29 Cal.4th at p. 1206.)
2. The court did not abuse its discretion by denying
defendant’s Romero motion.
Defendant also contends the court abused its discretion by
declining to strike one or more of his strike priors for one or more
counts. We disagree.
2.1. Standard of Review
When a prior felony conviction is proven under the Three
Strikes law, a trial court has discretion to strike it for sentencing
purposes under section 1385. (Romero, supra, 13 Cal.4th at
pp. 529–530.) The court may also choose to strike a prior

12
conviction as to one count but not as to another count. (People v.
Garcia (1999) 20 Cal.4th 490, 503–504.)
The court’s discretion is limited, however. (Romero, supra,
13 Cal.4th p. 530.) “[I]n ruling whether to strike or vacate a prior
serious and/or violent felony conviction allegation or finding
under the Three Strikes law, on its own motion, ‘in furtherance of
justice’ pursuant to Penal Code section 1385(a), or in reviewing
such a ruling, the court in question must consider whether, in
light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the trial court’s decision not to strike a prior
serious or violent felony for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 374.) A court abuses its
Romero/Garcia discretion only “in limited circumstances. For
example, an abuse of discretion occurs where the trial court was
not ‘aware of its discretion’ to dismiss [citation], or where the
court considered impermissible factors in declining to dismiss
[citation].” (Id. at p. 378.) It is “ ‘not enough to show that
reasonable people might disagree about whether to strike one or
more’ prior conviction allegations. [Citation].” (Ibid.) Instead, if
“ ‘the record demonstrates that the trial court balanced the
relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance’
[citation].” (Ibid.)

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 2.2. Proceedings Below
After trial, defendant filed a sentencing memorandum
asking the court to exercise its discretion to dismiss his prior
felony offenses for sentencing purposes. The request emphasized
that defendant grew up in difficult circumstances and has a
complicated and unresolved mental health history. The
prosecution’s sentencing memorandum sought a prison sentence
of 85 years to life.
At the sentencing hearing, the court indicated it had
reviewed defendant’s sentencing memorandum, the attached
report concerning defendant’s mental health status, and the
prosecution’s sentencing memorandum. Defense counsel
emphasized defendant’s mental health status at the hearing. The
court considered the report, as well as counsel’s argument, but
noted the conflicting diagnoses and observations contained in the
report as well as defendant’s resistance to psychological testing
prior to trial. Ultimately, the court denied the Romero motion
and sentenced defendant accordingly.
2.3. The court did not abuse its discretion.
Defendant contends his sentence is “overkill.” Specifically,
he asserts that “[t]he sentence more reflected a court that was
angry and frustrated with appellant than justice. … A more
reasoned court would provide mental health care and a long
sentence but not 85 years to life. Notably, appellant had no other
issues at least for the last 10 years other than those with respect
to two incidents with his girlfriend.”
As an initial matter, defendant grossly mischaracterizes
the court’s approach which was fair, reasoned, and entirely
professional in the face of defendant’s challenging behavior. By

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way of example, the following exchange occurred at the
sentencing hearing:
“Court (C): Okay. The court notes this trial in the court’s 53
years in – 53, 54 years in the law, almost all in the criminal area,
this was as bad a case as I’ve ever seen. This was a completely
unprovoked attack on a very fine young woman who was minding
her own business.
“Defendant (D): Nobody touched her. Don’t – don’t – don’t
do that to me, bro. You wasn’t there.
“C: Sir, if you’re not going to remain silent –
“D: You wasn’t there. Don’t stipulate that what I did to
somebody. You wasn’t there.
“C: Okay, sir.
“D: Wasn’t nobody even witnessing me doing anything.
“C: Are you going to be quiet, sir? Are you going to be
quiet?
“D: Violating my rights by forcing dumb-fuck P.D. on me.
“C: Okay, sir, are you going to be quiet?
“D: No. As a matter of fact, fuck you, what you’re going
through.
“C: He’s leaving the courtroom.
“D: Yeah, I’m leaving.
“C: Thank you.
“D: I already submitted paper on your punk ass anyway.”
Further, and as to defendant’s assertion that he had “no
other issues” within the last 10 years aside from issues with his
girlfriend, we note that the conviction in this case included two
serious felonies—kidnapping (§ 207, subd. (a)) and criminal
threats (§ 422, subd. (a)). And the conviction in the prior case,
involving the same victim, was also a serious felony—false

15
imprisonment for purposes of using the victim as a shield. These
offenses are both serious and demonstrate an escalating pattern
of violence, placing defendant within the spirit of the Three
Strikes Law. In short, no abuse of discretion is evident on this
record.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

SALTER, J.*

* Judge of the Orange County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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