(concurring) — Although I agree with the majority’s disposition, I do not agree with its analysis.
The majority acknowledges a defendant’s Sixth Amendment right to be present at trial is a fundamental right that can be waived only if the waiver is voluntary and knowing, yet it adopts the deferential abuse of discretion standard to review Benjamin Garza’s claim. Majority at 366, 369. The majority’s decision is inconsistent with Arizona v. Fulminante, 499 U.S. 279, 286, 111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302 (1991) (holding the ultimate issue of vol-untariness is a legal question) and Rice v. Wood, 44 F.3d 1396, 1399 (9th Cir. 1995) (holding whether a defendant waived his or her right to be present at trial is subject to de novo review), vacated in part on rehearing en banc, 77 F.3d 1138 (9th Cir. 1996). State courts must defer to the federal courts’ exposition of federal constitutional law. Cooper v. Aaron, 358 U.S. 1, 18, 78 S. Ct. 1401, 1409, 3 L. Ed. 2d 5 (1958). By adopting the less rigorous standard, the majority jeopardizes a fundamental constitutional right.
Equally ill-conceived is the majority’s adoption of a duty articulated by State v. Atherton whereby “an incarcerated defendant” is presumed to have waived his or her right to be present at trial unless the defendant “make[s] reasonable efforts to inform the court of his [or her] situation.” 106 Wn. App. 783, 790, 24 P.3d 1123 (2001). The majority creates this purported duty out of whole cloth, and it is also contrary to the court rule which contains no such qualification. See majority at 370.
CrR 3.4 provides in part,
Presence of the Defendant
(a) When Necessary. The defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the *373imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown.
(b) Effect of Voluntary Absence. The defendant’s voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by its lawyer for all purposes. In prosecutions for offenses punishable by fine only, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence.
(c) Defendant Not Present. If in any case the defendant is not present when his or her personal attendance is necessary, the court may order the clerk to issue a bench warrant for the defendant’s arrest, which may be served as a warrant of arrest in other cases.
The majority asserts its purpose is to prevent the “opportunistic defendant” from taking advantage of a subsequent arrest and incarceration while his or her first trial is still pending. Majority at 370. But it is not the court’s prerogative to rewrite the rule to add a qualification not present in its plain text. In re Custody of Smith, 137 Wn.2d 1, 41, 969 P.2d 21 (1998). And the majority’s imposition of such a duty contrary to the court rule is inconsistent with the requirement that “ £[c]ourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682, 119 S. Ct. 2219, 144 L. Ed. 2d 605 (1999) (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937)).
Although I would place my reliance on the plain language of the court rule which, by its terms, imposes no notification duty on the involuntarily absent defendant, I note most courts in other jurisdictions which have considered the matter have held that a defendant in custody on other charges cannot waive his or her right to be present at trial as a matter of law because he or she “is not free to make a voluntary decision about whether or not [to] attend the court proceedings,” State v. Houtz, 714 P.2d 677, 678 (Utah *3741986), and “his [or her] absence from the trial would be imputed, not to [the defendant], but to [the] custodian.” Harris v. State, 115 Tex. Crim. 227, 28 S.W.2d 813, 815 (1930); see also State v. Okumura, 58 Haw. 425, 428, 570 P.2d 848, 851 (1977) (A court rule allowing the trial to proceed when a defendant has voluntarily absented himself or herself “generally applies in the case of a defendant who has in fact escaped or absconded, and does not apply to a defendant who is in custody.”); Commonwealth v. Rivera, 44 Mass. App. Ct. 452, 455, 691 N.E.2d 972, 975 (1998) (A “trial should not continue without the presence of the accused” except in some “instances in which a defendant who is not in custody voluntarily absents himself from the proceedings.”); State v. Sainz, 186 Ariz. 470, 473-74, 924 P.2d 474, 477-78 (Ct. App. 1996) (“Had the trial court considered defendant’s confinement, the only conclusion that could have been reached was that defendant’s absence was involuntary.”); People v. Fields, 255 Ill. App. 3d 787, 789, 629 N.E.2d 62, 63, 195 Ill. Dec. 754 (1993) (“[A] defendant who is incarcerated is not voluntarily absent from his court proceeding and has not waived his right to appear.”); State v. Clements, 108 N.M. 13, 18, 765 P.2d 1195, 1200 (Ct. App. 1988) (“[W]hile defendant was in custody at the detention center pursuant to the court’s directive, he could not have been voluntarily absent from trial.”).
Even those courts which have refused to adopt a per se rule that a defendant is incapable of a voluntary waiver while incarcerated have held that where “the defendant’s absence was a direct result of being taken into police custody in connection with a crime not related to the trial” and there was evidence neither of fleeing, “nor a deliberate failure to appear without reason,” the defendant has not waived his or her right to be present at trial. United States v. Fontanez, 878 F.2d 33, 36-37 (2d Cir. 1989); People v. Herrera, 219 A.D.2d 511, 631 N.Y.S.2d 660 (1995). Some courts have upheld the waiver where a defendant refused to attend trial as part of an inmate-wide boycott of the courts, People v. Epps, 37 N.Y.2d 343, 350, 334 N.E.2d 566, 372 *375N.Y.S.2d 606 (1975), or failed to inform the court of his or her subsequent arrest and confinement in another jurisdiction when the terms of the defendant’s release on bail required such notification. Commonwealth v. Perez, 2000 PA Super. 214, 757 A.2d 955, 956. But that is not our case.
In light of the text of the court rule, considerable contrary authority from other jurisdictions, as well as the fundamental right at issue, the majority’s imposition in dicta of a duty based upon its view of desirable public policy which requires the defendant to inform the court of an anticipated absence to avoid a waiver of his right to attend his own trial is clearly contrary to law.