Attorney Answers: Do I have to Go To Court?

November 24, 2021

Rule of Thumb: Most of the time, if you have a good attorney, you do not have to go to court. However, there are some exceptions to this “rule of thumb”.

Fighting a criminal case can be very time-consuming and some criminal cases last months or even years. It is often advantageous to delay criminal cases 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 other issues. This can create a burden and in many states, if you are arrested for any crime, you have to be in court on the day you are ordered to appear and on every day any hearing on your case is held. Fortunately, in California, you do not have to appear in court in most hearings in misdemeanor and even some felony prosecutions.

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.

Misdemeanor Cases

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. First, in a domestic violence prosecution, the court usually will issue a protective (or stay away) order. These orders, to be valid, have to be told and served personally. Because of that, the court will order 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. 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 and sentencing. This is a relatively new law that is being selectively used by some judges to require a personal appearance.

Felony Cases

Felonies are a lot different than misdemeanors and carry potentially much longer jail sentences and other consequences for your life that 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.

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:

  1. California Penal Code 1043 requires defendants to be preset for felony trials. Thefore, 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 proceeding that requires your presence – the court will issue a warrant.
  2. If the has trial started, and then you did not come back for one of the days, and the judge decideds that you voluntary did not to come to trial, the judge can continue with the trial without without being there, including having the jury (or judge) render a verdict.
  3. 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 authority to appear for you. For example, if you have to be at work and cannot be present for your jury trial, you can give your Los Angeles Criminal Defense Attorney permission to conduct the trial on your behalf even if your trial lasts several weeks (like it usualy does in many Los Angeles Courts).
  4. 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 an 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.

Los Angeles DUI Attorney


(818) 921 7744
 Call anytime to get a free consultation with Los Angeles Criminal Defense and DUI Attorney.

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