2022 California Code
Penal Code - PEN
PART 2 - OF CRIMINAL PROCEDURE
TITLE 6 - PLEADINGS AND PROCEEDINGS BEFORE TRIAL
CHAPTER 1 - Of the Arraignment of the Defendant
Section 977.

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, 2024, and as of that date is repealed.

(Amended by Stats. 2022, Ch. 57, Sec. 12. (AB 199) Effective June 30, 2022. Repealed as of January 1, 2024, by its own provisions. See later operative version added by Sec. 13 of Stats. 2022, Ch. 57.)