Penal Code 977 PC (Waiver of Defendant’s Presence for Misdemeanors)

Penal Code 977 PC is the California statute that allows defendants to waive their presence in court for most misdemeanor proceedings. This even includes an appearance at arraignment, or the first formal proceeding in a criminal case.

Amidst the COVID-19 crisis, many California courts are allowing more defendants to waive their presence in court. Many courts are allowing defendants to appear through counsel – or even to appear remotely – even in felony cases. The procedures differ for each court. Check with your court and with your attorney.

“Waiver” means for defendants to:

1. give up their right to personally appear in court, and
2. have their criminal defense lawyer appear on their behalf.

The benefits of a defendant waiving one’s presence include:

• not having to pay travel expenses if you live out of state,
• not having to take time off of work to go to court, and
• reduced anxiety levels by having the lawyer handle the matter.

There are two main exceptions to the general rule in PC 977 that allows for the waiver of presence in misdemeanor cases. These are that an accused cannot waive his presence:

1. in certain domestic violence cases, and
2. in certain misdemeanor offenses involving driving under the influence.

As to felony cases, Penal Code 977 requires an accused to be personally present for most appearances in the criminal court process, including for example:

• arraignment,
• during the preliminary hearing, and
• during those portions of the trial when evidence is taken.

Please note that if a defendant (or his attorney) is required to appear in court, and he does not appear, he can be charged with a new crime. This is failure to appear, in violation of Penal Code 1320 and 1320.5.

Similarly, Vehicle Code 40508 VC makes it a crime to fail to appear on a traffic ticket. This is so even if the original traffic ticket was an infraction and not a crime.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Can an attorney appear in court on the client’s behalf?
• 2. Are there exceptions to the 977 PC rule?
• 3. Can a defendant waive his presence for felonies?
• 4. Can a party appear in court via video?
• 5. What if neither the defendant, nor his attorney, appear in court?
• 6. What is failure to appear under California Vehicle Code 40508?

Penal Code 977 is the California statute that allows a defendant to “waive” his presence in court for most misdemeanor proceedings.

1. Can an attorney appear in court on the client’s behalf?

Penal Code 977 is the California statute that allows a defendant to “waive” his appearance in court for most misdemeanor proceedings.¹ This even includes his appearance at the arraignment, or the first formal proceeding in a criminal case.

“Waiver” means a defendant:

1. gives up his right to personally appear in court, and
2. has his criminal defense lawyer appear on his behalf.²

The benefits of a defendant waiving his presence include:

• he does not have to pay travel expenses if he lives out of state,
• he does not have to take time off of work to go to court, and
• he can reduce anxiety levels by having his lawyer handle things.

2. Are there exceptions to the 977 PC rule?

There are two main exceptions to the general rule in PC 977 that allows for the waiver of presence.

The first is that a party cannot waive his presence in certain domestic violence cases. During these matters, an accused must be present for:

• arraignment,
• sentencing, and
• when ordered by the court for purposes of being informed of a protective order.³

The second exception is that a court can require a defendant’s presence for certain driving under the influence offenses.⁴ These “certain” offenses include:

• gross vehicular manslaughter, in violation of PC 191.5,
• DUI, in violation of VC 23152, and
• DUI causing injury, in violation of VC 23153.⁵

In these cases, the court has discretion to require the defendant to be present:

• for arraignment,
• at the time of entering a plea, or
• at sentencing.⁶

3. Can a defendant waive his presence for felonies?

Penal Code 977(b) says that an accused must be personally present for most felony court proceedings. These proceedings include:

• arraignment,
• at the time of entering a plea,
• during the preliminary hearing,
• during those portions of the trial when evidence is taken, and
• at the time of sentencing.⁷

There are some exceptions though. A judge may allow a waiver of a defendant’s presence in a felony case if:

• he is allowed to appear via video, or
• the accused executes a written waiver (and the judge agrees to it).⁸

If the defendant agrees to it, he may appear by video at certain stages of a case

4. Can a party appear in court via video?

If the defendant agrees to it, he may appear by video at the following stages of a case:

• the initial court appearance,
• arraignment, and
• entering of a plea.⁹

This rule applies for both misdemeanor and felony cases. The practice is becoming more common during the COVID-19 crisis. Having fewer people physically going to the courthouses reduces the risk of spreading the COVID-19 virus.

5. What if neither the defendant, nor his attorney, appear in court?

A defendant could be charged with the crime of failure to appear, per Penal Code 1320 and 1320.5, if he (or his attorney) does not appear in court (when required to do so).

A person can be charged with the crime of “failure to appear” in California if he:

• is charged with or convicted of a California crime,
• is released from custody, and
• willfully, or purposely, fails to appear in court when required to do so, in order to evade the process of the court.¹⁰

California Penal Code 1320 sets out the crime of “failing to appear” for defendants who are released on their own recognizance. Penal Code 1320.5 describes “failure to appear” for California defendants who are released on bail.

The penalties for failure to appear in California depend on the type of crime a defendant was initially charged with or convicted of.

If an accused was charged with or convicted of a misdemeanor and released on his own recognizance, then failure to appear is a misdemeanor.¹¹ The penalties include:

• up to six months in county jail, and/or
• a fine of up to $1,000.¹²

But if an accused was charged with or convicted of a felony, then failure to appear will be a felony under California law.¹³

If charged as a felony, the crime is punishable by:

• a county jail sentence of up to one year, or sixteen months or two or three years in state prison, and/or
• a fine of up to $5,000 if the defendant was released on his own recognizance, or $10,000 if he was released on bail.¹⁴

6. What is failure to appear under California Vehicle Code 40508?

A person can be charged with failure to appear, per Vehicle Code 40508, if he receives a traffic ticket for an infraction and does not show up in court.

When a driver is issued a traffic ticket in California, the officer will have him sign a written promise to appear in court. If he willfully fails to appear as promised, he violates Vehicle Code 40508 VC.¹⁵

Violation of VC 40508 is a misdemeanor. The penalties are:

• up to six months in county jail, and/or
• a fine of up to $1,000.¹⁶

Contact us for help…

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If you or someone you know is thinking about waiving your presence in court for a misdemeanor offense, we invite you to contact us for a free consultation. We can be reached 24/7 by phone or on social media.

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