PC 977 & 977(c) Waiver of Defendant’s Presence in Criminal Court: CA Criminal Defense Attorneys
Penal Code section 977 is the California law that describes when a defendant must personally appear in criminal court on either a misdemeanor or felony charge.
Misdemeanor Criminal Cases (PC 977(a)): In general, a defendant may appear in criminal court by way of his attorney. In other words, the defendant does not have to personally appear in misdemeanor cases, so long as his criminal defense attorney appears in court for him.
There are exceptions to PC 977(a) rule for domestic violence cases, such as domestic battery charges and corporal injury to spouse charges, where the defendant must be personally present at the initial court hearing (arraignment) and at sentencing. This is so the judge may personally service a criminal protective order against the defendant if necessary.
There are other exceptions to the PC 977(a) rule in some misdemeanor DUI cases if the judge feels it is proper for the defendant to personally appear in court at arraignment and/or sentence to receive a Watson advisal. This is especially true in DUI cases where the defendant has suffered a prior DUI conviction (PC 977(a) Abbrev.).
Felony Criminal Cases (PC 977(b)): in general, the defendant must personally appear in criminal court for court hearings.
Note: n some felony cases, the defendant may make an appeal to the criminal court judge as to why his attorney should be allowed to appear on his behalf. This is more common in cases where the defendant is in custody on another case, or where the defendant suffers from medical issues that create great need for an exception to the general rule of required personal appearance (PC 977(b) Abbrev.).
With the general rules aside, the following is a more detailed, but abbreviated description of California penal code 977 law. For further information regarding penal code 977 law, contact our criminal defense attorney today.
Per PC 977(a)(1): In all cases in which the accused is charged with a misdemeanor only, the defendant may appear by way of his attorney only, except in cases of domestic violence, violation of domestic violence restraining order, and driving under the influence of alcohol or drug (DUI) [With some exceptions, see below].
If the accused agrees, the initial court appearance, arraignment, plea, and all other proceedings, except jury and court trials, may be conducted remotely through technology, as provided by subdivision (c) (PC 977(a)(1) Abbrev.).
Domestic Violence Cases: If the accused is charged with a misdemeanor offense involving domestic violence, or a misdemeanor violation of Section 273.6 (Restraining Order Violation), the accused shall be present for arraignment and sentencing, and at any time during the proceedings when ordered by the court for the purpose of being informed of the conditions of a protective order issued pursuant to Section 136.2 (PC 977(a)(2) Abbrev.).
DUI Cases: If the accused is charged with a misdemeanor offense involving driving under the influence (DUI), in an appropriate case, the court may order a defendant to be present for arraignment, at the time of plea, or at sentencing. … a misdemeanor offense involving driving under the influence shall include a misdemeanor violation of any of the following: Vehicular Manslaughter While DUI. Reckless, Driving & Wet Reckless, VC 23152 (DUI), or VC 23153 (DUI) (PC 977(a)(3) Abbrev.).
Felony Cases: Per PC 977(b)(1): Except as provided in subdivision (c), in all cases in which a felony is charged, the defendant shall be physically present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence.
The accused shall be physically or remotely present at all other proceedings unless they waive their right to be physically or remotely present, with leave of court and with approval by defendant’s counsel.
The waiver of a defendant’s right to be physically or remotely present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record (PC 977(b)(2)).
A defendant’s personal waiver of the right to be physically or remotely present shall be on the record and state that the defendant has been advised of the right to be physically or remotely present for the hearing at issue and agrees that notice to the attorney that the defendant’s physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement (PC 977(b)(2)(A)).
A waiver of the defendant’s physical or remote presence may be entered by attorney, after attorney has stated on the record that the defendant has been advised of the right to be physically or remotely present for the hearing at issue, has waived that right, and agrees that notice to the attorney that the defendant’s physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement (PC 977(b)(2)(B)).
The court may specifically direct the defendant, either personally or through counsel, to be physically or remotely present at any particular court proceeding or portion thereof, including upon request of a victim…, (PC 977(b)(3)).
A written waiver of the defendant’s physical or remote presence shall be substantially in the following form (PC 977(b)(4)):
“Waiver of Defendant’s Physical or Remote Presence”
“The undersigned defendant, having been advised of their right to be present at all stages of the proceedings, including, but not limited to, presentation of and arguments on questions of fact and law, and to be confronted by and cross-examine all witnesses, hereby knowingly, intelligently, and voluntarily waives the right to be physically or remotely present at the hearing of any motion or other proceeding in this cause. The undersigned defendant hereby requests the court to proceed during every absence of the defendant that the court may permit pursuant to this waiver, and hereby agrees that their interest is represented at all times by the presence of their attorney the same as if the defendant were physically or remotely present in court, and further agrees that notice to their attorney that their physical or remote presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of their physical or remote appearance at that time and place.”
PC 977(c)(1)(A): Upon waiver of the right to be physically present by the defendant, criminal proceedings may be conducted through the use of remote technology, except as provided in subparagraphs (D) and (E). The defendant may withdraw the waiver at any time.
PC 977(c)(1)(B): The court may specifically direct the defendant, either personally or through counsel, to be physically present at any particular felony proceeding or portion thereof, including as provided in subdivision (f).
PC 977(c)(1)(C): If the defendant is represented by attorney, the attorney shall not be required to be physically present with the defendant if remote technology allows for private communication between the defendant and the attorney prior to and during the proceeding, unless, upon request of defense attorney, the court allows the appearance without private communication. Any private communication shall be confidential and privileged attorney / client privilege.
PC 977(c)(1)(D): A defendant charged with a felony or misdemeanor shall not appear remotely for a jury trial or court trial, except as provided in subparagraph (A) of paragraph (2).
PC 977(c)(1)(E): A defendant charged with a felony shall not appear remotely at sentencing, except for postconviction relief proceedings and as otherwise provided by law.
PC 977(c)(1)(F): A witness may appear at any misdemeanor or felony criminal proceeding, except for felony trial, remotely pursuant to section 977.3.
PC 977(c)(2)(A): A felony defendant who does not wish to be physically or remotely present for noncritical portions of the trial when no testimonial evidence is taken may make an oral waiver in open court prior to the proceeding, or may submit a written request to the court, which the court may grant in its discretion.
PC 977(d)(1): Notwithstanding any other provision in this section, the court may allow a defendant to appear by counsel on that day, at a trial, hearing, or other proceeding, with or without a written waiver, if the court finds, by clear and convincing evidence, all the following to be true:
(A) The defendant is in custody and is refusing, without good cause, to appear in court on that day for that trial, hearing, or other proceeding.
(B) The defendant has been informed of their right and obligation to be personally present in court.
(C) The defendant has been informed that the trial, hearing, or other proceeding will proceed without the defendant being present.
(D) The defendant has been informed that they have the right to remain silent during the trial, hearing, or other proceeding.
(E) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront any witnesses against them or to testify on their own behalf.
(F) The defendant has been informed whether or not defense counsel will be present.
PC 977(d)(2): The court shall state on the record the reasons for the court’s findings and shall cause those findings and reasons to be entered into the minutes.
PC 977(d)(3): If the trial, hearing, or other proceeding lasts for more than one day, the court is required to make the findings required by this subdivision anew for each day that the defendant is absent.
PC 977(d)(4): This subdivision does not apply to any trial, hearing, or other proceeding in which the defendant was personally present in court at the commencement of the trial, hearing, or other proceeding.
PC 977(e): A court may, as appropriate and practicable, allow a prosecuting attorney or defense counsel to participate in a criminal proceeding through the use of remote technology without being physically present in the courtroom and in accordance with subdivision (f).
PC 977(f): Except as otherwise provided by law, the court shall require a prosecuting attorney, defense counsel, defendant, or witness to appear in person at a proceeding, if any of the following conditions are present and cannot be resolved in a reasonable amount of time:
(1) The court does not have the technology necessary to conduct the proceeding remotely.
(2) Although the court has the requisite technology, the quality of the technology or audibility at a proceeding prevents the effective management or resolution of the proceeding.
(3) The quality of the technology or audibility at a proceeding inhibits the court reporter’s ability to accurately prepare a transcript of the proceeding.
(4) The quality of the technology or audibility at a proceeding prevents defense counsel from being able to provide effective representation to the defendant.
(5) The quality of the technology or audibility at a proceeding inhibits a court interpreter’s ability to provide language access, including the ability to communicate and translate directly with the defendant and the court during the proceeding.
PC 977(g)(1): Before the court may proceed with a remote proceeding, the court shall have a process for a defendant, defense counsel, prosecuting attorney, witness, official reporter, official reporter pro tempore, court interpreter, or other court personnel to alert the judicial officer of technological or audibility issues that arise during the proceeding.
PC 977(g)(2): When the court conducts a remote proceeding that will be reported by an official reporter or official reporter pro tempore, the reporter shall be physically present in a courtroom.
PC 977(h): The court shall make findings on the record that any waiver entered into pursuant to this section is knowingly, voluntarily, and intelligently made by the defendant.
For more information regarding California penal code 977, please contact our California criminal defense attorney today for a free consultation. Our criminal defense attorneys regularly appear on behalf of our clients without the need for their personal appearance in hundreds of misdemeanor and felony cases, including cases of DUI, Battery, Hit & Run, Indecent Exposure, Prostitution, Public Intoxication, failure to appear in court, violation of probation (VOP), vandalism, resisting arrest, statutory rape, and many more. Call today!
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