Rule of Thumb: Most of the time, in Los Angeles misdemeanor criminal cases, you do not have to go to court. However, usually, in California felony cases, you will be required to go to court. There are, however, some exceptions to these “rules of thumb”
Fighting a criminal case in Los Angeles can be very time-consuming and some criminal cases last months or even years. It also may be best to delay your Los Angeles criminal case to investigate or get a better deal from the prosecutor or a judge. This delay can result in multiple court hearings that many defendants cannot attend because of health, work, or don’t want to attend just because they are not comfortable going to court. Coming to court can be a burden; but, in many States, if you are arrested for any crime, you have to be in court on each day the case is heard. Because of that, California is a lot more easier for court appearances by defendants where you do not have to appear in court in most hearings in misdemeanor and even some felony criminal cases in Los Angeles.
Penal Code Section 977
Under California Penal Code section 977, the court gives attorneys permission to be in court instead of the defendants. Penal Code 977 is split into several sections, with section “a” covering misdemeanors and section “b” covering felonies.
Under California Penal Code section 977(a), a defendant can appear in court through a lawyer. The court will not mind if you do not come to court, instead, your Los Angeles criminal defense attorney is in court for you.
There are two exceptions to this law. The first, found in subdivision (b) of California Penal Code section 977, has to do with domestic violence. In domestic violence cases or where a defendant is accused of violating a restraining order issued in a domestic violence case (PC 273.6), the court, during 1st court appearance, usually, will issue a protective (or stay away) order. These orders, to be valid, have to be served personally. This order is usually also read into the record during open court proceedings. Because of that, the court will require a domestic violence defendant to be present personally at the first court in domestic violence or a violation of restraining order criminal case.
The second exception is for DUI defendants. This exception for having your lawyer appear in your criminal case is found in California Penal Code section 977(b). Unlike “domestic violence” cases, the second exception is not mandatory but is used by many judges to make DUI defendants come to court. In any DUI prosecution, the court can (but is not required) order a defendant to appear in court personally for the first court and for plea or sentencing. This is a relatively new law that is being selectively used by some judges to require a personal appearance. Los Angeles DUI Attorney believes that judges who order all defendants to show up to court for DUI cases violate the law. The Court of Appeal in 2012, in the case of Bracher v. The Superior Court (205 Cal.App. 4th 1445) held that a blanket policy requiring all defendants to show up to court violates Penal Code 977(a). The trial court can order a defendant to show up to a hearing only when there is a “good case based on circumstances of a particular case“. The court made a point that “in most cases., a defendant may appear by counsel only”. Thus, if you are ordered to appear in your Los Angeles DUI case, call Los Angeles DUI attorney so that we can explain to you, your rights. Unless your case is unique in some way, a judge cannot order you to be present
Interestingly, the court in Bacher states that a plea by telephone is not allowed because there is an issue with identity. This means that if the identity of an individual can be ascertained, a plea, not in person, could be allowed. This is a particular interest for post-conviction attorney Los Angeles, because often post-conviction attorney Los Angeles handles cases with clients who live in another state of the country.
WHAT ABOUT A PLEA FORM FILED IN COURT INSTEAD OF COMMING TO COURT?
Some judges, once again, have policy saying that “we want all defendants to be present in court to entr a plea”. However, under Bracher v. Superior court, (see above), such blanket polciy requiring all defendants to be personally present at the time of entering a plea, violates statutory right not to be present.
Such a mechanical policy ignores the necessary exercise of judicial discretion wihch must precede the deprivation of a misdemeanor statutory right to be absent and appear through counsel (Onley 133 Cal.App.3d at p. 462.
Felonies are a lot different than misdemeanors and carry potentially much longer jail sentences and other consequences for your life than misdemeanors do not. Because of that, traditionally, for felonies, all defendants had to be present in court for every hearing with the following exceptions:
Under California Penal Code section 977(b) an attorney can appear in court for a defendant if the defendant signs a form permitting a lawyer to appear for him. This form is called a “977(b)” waiver and has to be signed in open court. This permission not to go to court is not valid for arraignment, plea, sentencing, preliminary hearing, or any part of the trial when evidence is taken. Thus, under a 977(b) waiver, a felony defendant can appear through counsel for most hearings and even trial during jury selection or other proceedings not involving testimony.
Currently, because of COVID, most courts allow 977b appearances so that even in felonies, defendants do not have to appear in court.
Appearing At Trial
For purposes of coming to court, the trial is not different from any other appearances, and therefore, any defendant can have a lawyer defend him or her at trial without personally coming to court subject to the following exceptions:
- California Penal Code 1043 requires defendants to be preset for felony trials. Therefore, if you do not show up for a felony trial and your counsel does not have permission to appear for your under Penal Code section 977(b), and it is a part of a proceeding that requires your presence – the court will issue a warrant.
- If the trial started, and then you did not come back for one of the days, and the judge decided that you voluntarily did not come to trial, the judge can continue with the trial without being there, including having the jury (or judge) render a verdict.
- Because California Penal Code section 977 allows counsel to appear for all misdemeanor proceedings, you do have a right not to appear at trial for a misdemeanor as long as your attorney has the authority to appear for you. If the court is requiring your presence in Los Angeles DUI trial by saying, “I always require defendants to be present for trial”, this violates Bracher (see above), because in DUI cases a defendant can only be ordered present in an “appropriate case”. Bracher case interpreted this language of PC 977a to mean that a “good cause” has to exist to order a defendant to be present. For example, if you have to be at work and cannot be present for your jury trial, you can give your Los Angeles DUI Attorney and Los Angeles Criminal Defense Attorney permission to defend you at the trial on your behalf even if your trial lasts several weeks (like it usually does in many Los Angeles Courts).
- If your criminal trial has started and then you failed to appear without letting anyone know, the court will not just declare a mistrial and issue a warrant. Instead, under California Penal Code section 1043(e), the judge can say that your “failure to appear” is voluntary and the court is obligated to continue the trial absent a good cause. This means that you can be found guilty in absentia and then a warrant is issued to make sure when you are sentenced, you are present in court.
Questions and Answers:
Q: Can my relative or a friend be present in court instead of me?
A: No, a relative, even a close one, such as a mother or brother cannot legally be in court instead of you. The court must issue a warrant to retain jurisdiction over the defendant. If you do not have a Los Angeles Criminal Defense attorney or Los Angeles DUI Attorney who can represent you in court under Penal Code 977 authority, the court must issue a bench warrant and set bail. If you were released with a bond, the court must forfeit the bond and set new bail on the warrant. If the warrant is issued, police can go to look for you and arrest you on the spot.
Q. What if I am a victim and I received a subpoena to appear in court and I don’t want to go?
A: A subpoena to appear in criminal proceedings, to be enforceable, must be received in person or acknowledged by you. Because subpoenas for low-level offenses are mailed, failing to appear should not result in a warrant for arrest unless you confirm that you know about your obligation to come to court. Specifically, if you received a subpoena in the mail, and did not respond to it, the prosecutor will not be able to claim that he or she knows that you receive it. However, if you acknowledge knowledge of the subpoena then you have to appear and, under this circumstance, a failure to appear is a violation of the law and/or court order. To enforce a validly served subpoena the prosecutor can ask the court to issue a warrant for your arrest.
If you were arrested in Los Angeles, call Los Angeles Criminal and DUI attorney ASAP. We provide free consultation and you will talk to one of the best criminal defense attorneys in Los Angeles directly. We specialize in most Criminal Cases in Los Angles and all Los Angles DUI arrests.
(818) 921 7744 Call anytime to get a free consultation with Los Angeles Criminal Defense and DUI Attorney.
YOU MAY ALSO BE INTERESTED IN: