ORIGINAL PROCEEDINGS; petition for writ of mandate or prohibition. Suzanne N. Kingsbury, Judge. (Super. Ct. No. PC20100736)
The opinion of the court was delivered by: Hull , Acting P. J.
CERTIFIED FOR PUBLICATION
This petition for writ of mandate or prohibition was filed on behalf of three defendants who were charged with misdemeanor offenses in three separate cases. The El Dorado County Public Defender's Office represented the petitioners. Each petitioner asked the El Dorado County Superior Court to allow counsel to appear for the petitioner at a readiness and settlement conference and to excuse the petitioner from personally appearing. The trial court denied each request and required the petitioner's personal appearance at the conference.
Petitioners assert that the trial court acted pursuant to a blanket policy supported by the Superior Court of El Dorado County, Local Rules, rule 5.11.02 (Local Rule 5.11.02). Petitioners claim the court violated state law allowing misdemeanor defendants to appear through counsel unless the court finds good cause based on the particular facts and circumstances of the case.
As we shall explain, petitioners' arguments have merit. Penal Code section 977, subdivision (a)(1) provides that in misdemeanor cases, a defendant "may appear by counsel only" except as otherwise provided by the statute. (Unless otherwise specified, statutory references that follow are to the Penal Code.) Consistent with the statute, case law holds that the trial court may require a misdemeanor defendant's appearance at a hearing only upon a finding of good cause based on the circumstances of a particular case. Although the instant matters are themselves moot, this petition concerns matters of public interest that are likely to recur, yet evade review. Accordingly, we shall grant this petition and afford prospective relief to misdemeanor defendants in El Dorado County.
To understand the trial court's rulings, it is necessary to first review state law and the relevant court rules. Section 977 differentiates between felony and misdemeanor cases in terms of whether a defendant may be required to personally appear at a court hearing.
Section 977, subdivision (a) provides in its entirety:
"(1) In all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only, except as provided in paragraphs (2) and (3). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, 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."
Thus, as can be seen section 977, subdivision (a) provides that in most misdemeanor cases, a defendant "may appear by counsel only" unless certain exceptions apply. One exception provides that "in an appropriate case" involving a charge of driving under the influence (DUI) "the court may order a defendant to be present for arraignment, at the time of plea, or at sentencing." (§ 977, subd. (a)(3), italics added.)
Section 977, subdivision (b) applies to felony cases and significantly curtails a defendant's ability to appear solely through counsel. In felony cases, "the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof." (§ 977, subd. (b)(2).) The statute sets forth a sample form for a written waiver in felony cases and specifies that the waiver used by the court must be in substantially the same form. (Ibid.) Further, the statute requires the defendant's personal appearance at various proceedings. It provides in pertinent part: "In all cases in which a felony is charged, the accused shall be 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 personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2)." (§ 977, subd. (b)(1); see also § 1043, subds. (a)-(d).)
Local Rule 5.11.02 provides:
"At any and all pretrial conferences, pre-preliminary hearing conferences, preliminary hearings, arraignments on information, and all readiness and settlement conferences, the defendant, defense counsel, and a prosecuting attorney with full authority to dispose of the case shall be required ...