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Waiver of Presence

Penal Code 977 PC - Waiver of Defendant's Presence for Misdemeanors

It's never convenient, of course, to have to appear in court on criminal charges. But, thankfully, there's a provision in California law that makes it unnecessary to appear in person for many minor offenses.

California Penal Code Section 977 PC allows defendants to waive their required presence in court for most misdemeanor proceedings.

Waiver of Defendant's Presence - Penal Code 977 PC
Penal Code 977 PC allows defendant's to waive their court appearance for misdemeanor cases.

If you sign this waiver, you can appear "by counsel only" at most court appearances. This provision can help reduce the costs and stress of defending oneself against a misdemeanor charge.

In other words, this statute allows defendants to waive their presence in court for most misdemeanor proceedings, including an appearance at the first formal court appearance, called an arraignment.

A waiver means a defendant gives up their right to appear in court personally and have their criminal defense attorney appear on their behalf.

The benefits of waiving presence include not taking time off work to go to court, which tends to reduce stress by letting your attorney make the appearance.

Notably, there are a few exceptions to the Penal Code 977 PC allowing waiver of presence in misdemeanor cases. This means a defendant can't waive their presence in particular domestic violence cases and some misdemeanor driving under the influence cases.

A defendant must personally appear in court for most felony cases, including arraignment, preliminary hearing, and trial. Let's review this state law in more detail below.

What Does the Law Say?

As noted, PC 977 allows defendants accused of certain misdemeanors to waive their right to appear in court in person.

Appearing in Court Via Video
A defendant could make their appearance by video.

Instead, they may choose to appear "by counsel only" and have their attorney represent them during most court appearances, including the initial hearing and arraignment, plea, and sentencing.

PC 977 says, “(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).”

The rationale behind this waiver is that defendants should not be forced to bear the inconvenience, cost, potential loss of income, etc., associated with appearing in court on minor offenses; and that for most of these offenses, attorney representation is sufficient to bring the case to resolution.

By signing the waiver, you agree to the following terms:

  • You officially waive your right to appear personally in court; and
  • You authorize your criminal defense attorney to appear on your behalf.

What are the Exceptions to The Rule?

PC 977 lists two exceptions in which a defendant may not waive appearing in court for misdemeanors. These include:

  • Certain domestic violence offenses, including violating a protective order under penal Code 136.2 PC and a misdemeanor charge of Penal Code 273.5 PC corporal injury to a spouse;
  • Certain DUI offenses, including Vehicle Code 23152 VC DUI, Vehicle Code 23153 VC DUI causing injury, and Vehicle Code 191.5 PC vehicular manslaughter.

In these cases, if you're accused of a crime qualifying as one of these exceptions, the court may mandate you to appear for your arraignment, plea entry, or sentencing. In domestic violence cases, you may also have to appear to be informed of a protective order.

What Are the Advantages of Waiving Appearance in Court?

Choosing to sign this waiver can be beneficial for many reasons. Among them:

  • It saves time and travel. The waiver eliminates the need for a defendant who lives out-of-state or too far away from the courthouse to be required to travel long distances just to attend a hearing.
  • It causes less disruption with work schedules. The waiver means you don't have to take time off work to go to court, potentially saving you from suffering from lost wages.
  • It reduces anxiety over the charges. By avoiding the courtroom and allowing your attorney to handle things, you may feel less stress and worry about your case.

Appearing in Court Via Video

Another provision of PC 977 is that the court has the authority to allow defendants who agree to it to appear via two-way video for certain portions or, in some cases, all of the proceedings instead of personally in court.

This practice has become widespread in the wake of the COVID-19 pandemic, and most courts in California maintain options for appearing remotely. Video court appearances are allowed for both misdemeanor and felony offenses.

Can the Waiver Be Used for Felony Offenses?

In the majority of cases, no. Under PC 977, those accused of a felony may not waive their right to appear in court for most proceedings. Specifically, if you're charged with a felony, you must appear in person for the following:

  • At your arraignment;
  • To enter a plea;
  • At the preliminary hearing;
  • At trial, when evidence is being heard;
  • At sentencing.

There are two instances in which the court may grant an exception and allow a waiver for felony offenses.

First, if you execute a written waiver in court, the judge has the authority to honor and grant it, although you may have to provide sufficient reason for the request. Second, you may appear for certain hearings via video if the court permits.

Failing to Appear - Penal Code 1320, 1320.5 PC

When filing a waiver to appear, it's wise to confirm that the waiver is approved and that you and your attorney know the court dates.

Failing to Appear - Penal Code 1320, 1320.5 PC
Contact our law firm for legal advice.

If you fail to appear for a mandated court appearance, or if your attorney fails to appear on your behalf, you can be charged with failing to appear under Penal Code 1320 PC or penal Code 1320.5 PC.

If you were to appear on a misdemeanor charge, the additional charge would also be a misdemeanor. If you fail to appear on a felony charge, it's an additional felony offense.

You can be charged with the crime of failure to appear in California if you are charged or convicted of a crime, released from custody, and willfully fail to appear in court when required to evade the process of the court. The penalties for failure to appear will depend on the type of crime, whether a misdemeanor or felony.

If you were charged with a misdemeanor crime and considering waiving your appearance, contact our law firm to review the details and options. Eisner Gorin LLP is located in Los Angeles, California.

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