Although saying “[a] defendant’s absence from trial due to drug use is not per se voluntary,” a 5-2 Supreme Court in People v. Ramirez today holds substantial evidence supports the superior court’s finding that the 19-year-old defendant there did voluntarily absent himself from one day of trial when he sought treatment for a heroin overdose after initially refusing emergency medical assistance. The court thus does not disturb the defendant’s attempted burglary conviction.

The court’s opinion by Chief Justice Tani Cantil-Sakauye concludes that, even if the superior court’s finding of a “clearly established” voluntary absence — which is the standard for establishing a waiver of the constitutional right to be present at trial — “was akin to a finding by clear and convincing evidence,” the evidence supported that higher standard of proof. The court says “the record supports the trial court’s implicit determination that defendant had no sound basis for failing to appear.”

The court also declines to decide whether the superior court abused its discretion by denying defense counsel a continuance. The “petition for review did not adequately raise th[at] additional question,” the opinion says.

Justices Goodwin Liu and Leondra Kruger each write a dissenting opinion.

Justice Liu asserts that “the sparse record” is insufficient to support a “clearly established” voluntary absence, that the defendant didn’t “forfeit” the ability to challenge the denial of a continuance, that a continuance was clearly warranted, and that proceeding with the trial without the defendant was prejudicial error.

Justice Kruger agrees with the majority that substantial evidence supports the voluntary absence finding, but she also agrees with Justice Liu that the court should decide the issue whether a continuance was warranted and should reverse on that ground.

The court affirms the Fifth District Court of Appeal’s divided unpublished opinion.