Penal Code § 977 PC allows defendants in most California misdemeanor cases to waive their personal appearance and appear “by counsel only.” This means the attorney can go to court and appear on the client’s behalf.
Some of the benefits of waiving your presence are:
- 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 your lawyer handle the matter.
However, you do have to be present in certain misdemeanor cases involving:
In felony cases, Penal Code 977 requires you to be personally present throughout the criminal court process whether or not you have an attorney.
If you or your attorney fails to appear in court when required, you face charges for failure to appear in violation of Penal Code 1320 and 1320.5. Even failing to appear on a traffic infraction ticket is a crime under Vehicle Code 40508 VC.
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 their 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?
- Additional resources
Penal Code 977 is the California statute that allows defendants to “waive” their 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” their appearance in court for most misdemeanor proceedings.1 This even includes their appearance at the arraignment, or the first formal proceeding in a criminal case.
“Waiver” means a defendant:
- gives up their right to personally appear in court, and
- has their criminal defense lawyer appear on their behalf.2
The benefits of a defendant waiving their presence include:
- they do not have to pay travel expenses if they live out of state,
- they do not have to take time off of work to go to court, and
- they can reduce anxiety levels by having their 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 their presence in certain domestic violence cases (including violating a protective order (PC 136.2) and corporal injury to a spouse (PC 273.5). 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 their 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:
- they are 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, they 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. This practice became widespread during the COVID-19 pandemic.
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 they (or their attorney) do not appear in court when required to do so.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 their 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
Though 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 their own recognizance, or $10,000 if they were released on bail.14
6. What is failure to appear under California Vehicle Code 40508?
When a driver is issued a traffic ticket in California, the officer will have them sign a written promise to appear in court. If they willfully fail to appear as promised, they violate 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
Additional resources
For more in-depth information, refer to the following:
- Systemic Failure To Appear in Court – University of Pennsylvania Law Review.
- Behavioral nudges reduce failure to appear for court – Science.
- Reducing courts’ failure-to-appear rate by written reminders – Psychology, Public Policy, and Law.
- An Experiment in the Law: Studying a Technique to Reduce Failure to Appear in Court – Court Review.
- An Exploratory Assessment of Race and Gender-Specific Predictors of Failure to Appear in Court Among Defendants Released via a Pretrial Services Agency – Criminal Justice Review.
Legal References:
- California Penal Code 977. The language of the statute reads as follows:977. (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, plea, and all other proceedings, except jury and court trials, may be conducted remotely through the use of technology, 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 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.
(2) 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.
(A) 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.
(B) A waiver of the defendant’s physical or remote presence may be entered by counsel, after counsel 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.
(3) The court may specifically direct the defendant, either personally or through counsel, to be physically or remotely present at any particular proceeding or portion thereof, including upon request of a victim, to the extent required by Section 28 of Article I of the California Constitution.
(4) A written waiver of the defendant’s physical or remote presence shall be substantially in the following form:
“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.”
(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.
(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).
(C) If the defendant is represented by counsel, 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 counsel, the court allows the appearance without private communication. Any private communication shall be confidential and privileged pursuant to Section 952 of the Evidence Code.
(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).
(E) A defendant charged with a felony shall not appear remotely at sentencing, except for postconviction relief proceedings and as otherwise provided by law.
(F) A witness may appear at any misdemeanor or felony criminal proceeding, except for felony trial, remotely pursuant to section 977.3.
(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.
(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.
(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).
(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.
(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.
(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.
(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.
(i) The Judicial Council shall adopt rules and standards that are necessary to implement the policies and provisions of this section and the intent of the Legislature.
(j) This section shall remain in effect only until January 1, 2025, and as of that date is repealed.
(Amended (as amended by Stats. 2022, Ch. 57, Sec. 12) by Stats. 2023, Ch. 190, Sec. 3. (SB 135) Effective September 13, 2023. Repealed as of January 1, 2025, by its own provisions. See later operative version, as amended by Sec. 4 of Stats. 2023, Ch. 190.)
- 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.