Conscious of Guilt: Court Absences — Instruction Not Warranted for Brief Refusal to Attend Trial?
October 29th, 2019

People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243 held that a permissive inference of consciousness of guilt is not appropriate simply because a defendant briefly refused to come to court.  There was no reason to think defendant’s refusal to come to court was indicative of consciousness of guilt. Gomez may simply have been tired as he was being roused for court before 6 a.m.  Or he may have been frustrated by the trial process and wanted to assert more control over it. None of these circumstances supported an inference of consciousness of guilt. Permissive inferences are constitutionally suspect when “under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference.”  Here, the court’s proposed inference – that defendant’s brief refusal to come to court reflected consciousness of guilt – was “not one that reason and common sense justify in light of the proven facts before the jury.”  The judge’s decision to admit evidence of defendant’s refusal to come to court and accompanying instructions on consciousness of guilt therefore violated of defendant’s constitutional rights to due process.

The CSC has previously approved making such inferences in a case where the defendant escaped from prison while awaiting trial; where a defendant skipped bail and missed the guilt phase of his trial; and where defendant missed two pretrial hearings. However, there is another line of cases where the CSC found error in a court assigning consciousness of guilt for brief court absences that occurred for reasons other than an attempt to elude prosecution or punishment. Here, the evidence suggested defendant merely intended to disrupt the court proceedings temporarily, not to avoid prosecution or punishment, so admission of the evidence was error.


It is proper to instruct on consciousness of guilt in cases where the defendant sought to prevent the production of evidence, for example by refusing to participate in a line-up, to provide hair or blood samples or to give a voice exemplar. In those situations, a defendant sought to interfere with evidence, presumably out of fear that it would incriminate them.  Here, by contrast, defendant mere sought to temporarily delay proceedings, not to thwart the production of evidence nor to fabricate false evidence, so the instruction was error.


Nevertheless, Gomez was not prejudiced by the admission of evidence that he briefly refused to attend court and the instruction that the jury could infer from this that defendant harbored consciousness of guilt. The fact the jury did not find defendant guilty on all the counts suggests that the trial court’s errors did not have the sweeping effect argued by defendant. The prosecution did not rely significantly on the circumstances around defendant’s absence and made no mention of it during closing argument. Further, in light of the considerable evidence of guilt presented over the months-long trial the errors did not carry material weight at the guilt phase. There is also little chance the evidence influenced the jury’s penalty phase decision.  Defendant was convicted of four out of five murders charged and the prosecution presented substantial evidence of additional violent acts committed by defendant both before and after the murders, including acts in the jail while defendant awaited trial. This was in contrast to relatively little mitigation evidence offered by the defense. The trial court’s error did not affect the jury’s verdict.