Not only is there stress and anxiety associated with the mere fact that a person has been charged with a crime, the act of going to court can be especially intimidating for many. While every criminal defendant has the right to be personally present with counsel at trial, the law also says that in all nearly all misdemeanor cases, a defendant’s attorney may appear on their behalf, without the defendant having to be present, allowing the defendant to attend work, school, or to other obligations. For defendants facing felony charges who do not wish to be personally present for noncritical portions of the proceedings (namely those where no testimonial evidence is taken,) they can also make an oral waiver in open court prior to the proceeding or may submit a written request to the court, asking that they be excused from the proceedings.
All of that said, even when a defendant has waived the right to be personally present, the court is allowed to require a defendant who is being held in any state, county, or local facility within the county to be present for noncritical portions of the trial by two-way electronic communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom.
But what happens when and in-custody defendant refuses to particulate with the process? …In short, prior to a recent change in the law, the system might grind to a halt. This was a because, in a lot of cases, the sheriff's department could be hesitant to physically remove the defendant from his or her jail cell to bring the defendant to court, fearing for the safety of themselves, or the defendant, or because they are concerned about the risk of contracting an illness, a fear that has been heightened by the COVID pandemic.
Now, however, the court may allow a defendant to appear by way of their counsel for any matter, with or without a written waiver, if the court finds, by clear and convincing evidence:
a) The defendant is in custody and is refusing, without good cause, to appear in court on that day for the 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 witnesses against them or to testify on their own behalf, and
f) The defendant has been informed whether or not defense counsel will be present.
A defendant is eligible to reclaim their right to be present at the trial as soon as they are willing to conduct themselves consistently with the decorum and respect.
 Cal. Const., Art. I, sec. 15.
 Penal Code § 977 (a). If the accused is charged with a misdemeanor offense involving domestic violence 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. (Penal Code § 977 (a)(2).)
 Penal Code § 1043 (c).
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