Appearance without client’s presence – Felony v. Misdemeanors

Generally, a criminal defendant must be personally present in felony cases. Cal. Penal Code § 977(b). However, this general rule does not apply in most misdemeanor cases, and the defense attorney may appear on their client’s behalf. See Cal. Penal Code § 977(a) . A defendant who chooses not to personally appear pursuant to Section 977 must do so with knowledge of the proceedings, and the court must be confident the defendant authorized counsel to act. (Olney v. Municipal Court (1982) 133 Cal.App.3d 455, 460-461.)

Authority for Counsel to Appear in Misdemeanor Cases

Under Penal Code section 977(a):

(a) (1) In all cases in which the accused is charged with a misdemeanor only, he or she 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.

Cal. Penal Code § 977(a).

Thus, in misdemeanor cases, the law permits appearance by counsel so long as the defendant is knowledgeable of the court date and authorized the appearance on his or her behalf.

The exceptions listed apply to domestic violence matters at the first appearance (“arraignment”) and at sentencing, and where may be required for protective orders to be issued upon the defendant. [Cal. Penal Code § 977(a)(2)]. Solano, Napa, and Yolo Courts generally permit appearance by counsel in these cases and will permit counsel to accept a protective order on his client’s behalf.

In DUI-related cases, the court may order the personal appearance of the defendant at arraignment, time of plea, or sentencing, but only in “in the appropriate case”, not as a blanket rule. [Cal. Penal Code § 977(a)(3); Bracher v. Superior Court (2012) 205 Cal.App.4th 1445, 1456.]  In Solano, Napa, and Yolo Counties, the misdemeanor courts generally allow appearance by counsel at all stages of the proceedings in DUI cases, but may suggest that the defendant appear if trial is set or if a resolution has not been reached after many court appearances and trial is likely to be set.

Even at a misdemeanor trial, the proceedings may be held in the defendant’s absence so long as the court finds that the defendant knew that the trial would be so held (Cal. Penal Code § 1043(e)), and that a verdict to be received and judgment pronounced in a misdemeanor defendant’s absence. (Cal. Penal. Code, §§ 1148, 1193(2).)

Appearance by Counsel in Felony Cases: Waiver and Permission by the Court Required

In felony cases, the defendant must appear unless a “977(b)” waiver is accepted by the Court and executed in court on the record. Cal. Penal Code § 977(b). Under Penal Code section 977(b), “the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof.” Cal. Penal Code § 977(b)(2).The statute sets forth a sample form for a written waiver in felony cases and specifies that the waiver used by the court must be in substantially the same form. (Id.)

Further, the statute requires the defendant’s personal appearance at various proceedings. It provides in pertinent part: “In all cases in which a felony is charged, the accused shall be 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 he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2).” (Cal. Penal Code § 977(b)(1); see also Cal. Penal Code § 1043(a)-(d).)

Thus, in felony cases, appearance by counsel-only is limited and must be approved by the Court if permitted.

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At Honeychurch & Boyd, we work to serve your needs, and seek never inconvenience your busy life unnecessarily as a result of being accused of a crime. We appear on behalf of client’s in misdemeanor cases on a near-daily basis, and have entered, and appeared upon, many “977(b)” waivers in felony matters for our client’s benefit.  If you have a criminal case that threatens to disrupt your work, school, or other important routine in Solano, Napa, or Yolo Counties, call our office today  at 707-429-3111 for a free consultation to see how we can best represent your interests.