People v. Sanchez

STERNBERG, Judge.

Convicted of first degree assault and simple robbery, the defendant, Anthony Sanchez, appeals. We affirm.

His principal contention of error is that, because the injuries to the victim did not entail a substantial risk of death, the trial court erred in allowing the jury to consider the first degree assault charge. We find no error.

I.

The victim was stabbed four times. One wound, in the abdomen, lacerated the victim’s liver. His stomach cavity was opened to check on this laceration, but no actual treatment was necessary because the wound was not bleeding. The treating physician testified that 62% to 95% of untreated liver lacerations result in death. This testimony was sufficient to allow the issue of whether there was a substantial risk of death to the victim to be submitted to the jury. See Stroup v. People, 656 P.2d 680 (Colo.1982). See also People v. Thompson, 748 P.2d 793 (Colo.1988). The jury was instructed on second and third degree assault, but convicted defendant of first degree assault, thus indicating that it rejected the argument that the victim did not face a substantial risk of death.

II.

Also without merit is defendant’s contention that the court erred in denying his request for a mistrial.

The defendant did not appear on the third day of trial. His attorney sought a mistrial because defendant had not been informed of his right to testify as required by People v. Curtis, 681 P.2d 504 (Colo.1984). We hold that by voluntarily absenting himself from the trial at the time appropriate for a Curtis advisement, the defendant waived his right to the advisement, and his right to testify. To reach a contrary result would allow a defendant who is free on bond to determine whether a trial is going well for him or not, and then to force a mistrial by not appearing if he is not satisfied with its progress. See People v. Thorpe, 40 Colo.App. 159, 570 P.2d 1311 (1977).

III.

The defendant’s final contention of error, that the victim’s in-court identification of him should have been suppressed is not supported by the record.

The judgment is affirmed.

BABCOCK, J., concurs. TURSI, J., concurs in part, and dissents in part.