Penal Code 977 PC is the California statute that allows defendants to waive their presence in court for most misdemeanor proceedings. This includes an appearance at the arraignment, which is the first formal proceeding in a criminal case.
Waiver means for defendants to:
- give up their right to personally appear in court, and
- 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:
- in certain domestic violence cases, and
- 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 a 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 the 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:
- gives up his right to personally appear in court, and
- 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 the 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 to 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 the 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…
Contact us for help with your case.
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.
Legal References:
- California Penal Code 977(a)(2) PC. This code section states: (a) (1) In all cases in which the accused is charged with a misdemeanor only, they may appear by counsel only, except as provided in paragraphs (2) and (3). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided by subdivision (c). (2) If the accused is charged with a misdemeanor offense involving domestic violence, as defined in Section 6211 of the Family Code, or a misdemeanor violation of Section 273.6, 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.(3) If the accused is charged with a misdemeanor offense involving driving under the influence, in an appropriate case, the court may order a defendant to be present for arraignment, at the time of plea, or at sentencing. For purposes of this paragraph, a misdemeanor offense involving driving under the influence shall include a misdemeanor violation of any of the following:
(A) Subdivision (b) of Section 191.5.
(B) Section 23103 as specified in Section 23103.5 of the Vehicle Code.
(C) Section 23152 of the Vehicle Code.
(D) Section 23153 of the Vehicle Code.
(b) (1) Except as provided in subdivision (c), in all cases in which a felony is charged, the accused shall be personally 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 personally present at all other proceedings unless they shall, with leave of court, execute in open court, a written waiver of their right to be personally present, as provided by paragraph (2). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided by subdivision (c).
(2) The accused may execute a written waiver of their right to be personally present, approved by their counsel, and the waiver shall be filed with the court. However, the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof. The waiver shall be substantially in the following form:
“Waiver of Defendant’s Personal 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 waives the right to be 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 personally present in court, and further agrees that notice to their attorney that their presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of their appearance at that time and place.”
(c) (1) The court may permit the initial court appearance and arraignment of defendants held in any state, county, or local facility within the county on felony or misdemeanor charges, except for those defendants who were indicted by a grand jury, to be conducted by two-way electronic audiovideo communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom. If the defendant is represented by counsel, the attorney shall be present with the defendant at the initial court appearance and arraignment, and may enter a plea during the arraignment. However, if the defendant is represented by counsel at an arraignment on an information in a felony case, and if the defendant does not plead guilty or nolo contendere to any charge, the attorney shall be present with the defendant or if the attorney is not present with the defendant, the attorney shall be present in court during the hearing. The defendant shall have the right to make their plea while physically present in the courtroom if they request to do so. If the defendant decides not to exercise the right to be physically present in the courtroom they shall execute a written waiver of that right. A judge may order a defendant’s personal appearance in court for the initial court appearance and arraignment. In a misdemeanor case, a judge may, pursuant to this subdivision, accept a plea of guilty or no contest from a defendant who is not physically in the courtroom. In a felony case, a judge may, pursuant to this subdivision, accept a plea of guilty or no contest from a defendant who is not physically in the courtroom if the parties stipulate thereto.
(2) (A) A defendant who does not wish to be personally 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. The court may, when a defendant has waived the right to be personally present, require a defendant held in any state, county, or local facility within the county on felony or misdemeanor charges to be present for noncritical portions of the trial when no testimonial evidence is taken, including, but not limited to, confirmation of the preliminary hearing, status conferences, trial readiness conferences, discovery motions, receipt of records, the setting of the trial date, a motion to vacate the trial date, and motions in limine, by two-way electronic audiovideo communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom. If the defendant is represented by counsel, the attorney shall not be required to be personally present with the defendant for noncritical portions of the trial, if the audiovideo conferencing system or other technology allows for private communication between the defendant and the attorney prior to and during the noncritical portion of trial. Any private communication shall be confidential and privileged pursuant to Section 952 of the Evidence Code.
(B) This paragraph does not expand or limit the right of a defendant to be personally present with their counsel at a particular proceeding as required by Section 15 of Article 1 of the California Constitution.
(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 of 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.
(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.
(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.
(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.
- See same.
- California Penal Code 977(a)(2) PC.
- California Penal Code 977(a)(3) PC.
- See same.
- See same.
- California Penal Code 977(b) PC.
- See same.
- California Penal Code 977(a) and (c) PC.
- California Penal Code 1320 PC.
- California Penal Code 1320 PC.
- California Penal Code 19 PC.
- California Penal Code 1320 PC.
- See same. See also Penal Code 1320.5 PC.
- California Vehicle Code 40508 VC.
- California Penal Code 19 PC. Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.