A judge may continue a felony trial without the defendant only after the required warning and serious continued disruption. Penal Code section 1043(b)(1) applies when the trial began with the defendant physically present, the judge warned that continued disruptive conduct could lead to removal, and the defendant then behaved so disorderly, disruptive and disrespectful that the trial could not proceed with the defendant in the courtroom. Removal is permitted in those circumstances; it is not automatic. (Penal Code § 1043(b)(1))
A frustrated remark, disagreement with a ruling or ordinary courtroom objection is not by itself the statutory test. The record should show the exact warning, what happened afterward, and why the judge found the trial could not continue with the defendant present. In Illinois v. Allen, the U.S. Supreme Court described the warning-and-removal framework; California’s Supreme Court has distinguished this kind of removal from voluntary absence. Neither case makes removal mandatory whenever a defendant acts disrespectfully. (Illinois v. Allen; People v. Davis)
The defendant can ask to return
Section 1043(c) allows the defendant to reclaim the right to be present as soon as the person is willing to behave consistently with courtroom decorum. The judge should consider the actual request or offer to follow the rules and the courtroom circumstances. Counsel should preserve each request to return, the court’s response, and how counsel communicated with the client and continued the defense while the client was outside. (Penal Code § 1043(c))
This is the narrow continued-disruption procedure after a felony trial has begun. Voluntary absence and refusal to attend from custody follow separate routes under section 1043; a removal does not itself mean the defendant waived every trial right, and it does not automatically require a mistrial or reversal.
For a broader overview of California criminal trials, see the firm’s practice page. For help reviewing a courtroom-removal issue, contact the Law Offices of David S. Chesley at (800) 755-5174.