Rule Emergency Rule 5 - Personal appearance waivers of defendants during health emergency(a) ApplicationNotwithstanding any other law, including Penal Code sections 865 and 977, this rule applies to all criminal proceedings except cases alleging murder with special circumstances and cases in which the defendant is currently incarcerated in state prison, as governed by Penal Code section 977.2.
(b) Types of personal appearance waivers(1) With the consent of the defendant, the court must allow a defendant to waive his or her personal appearance and to appear remotely, either through video or telephonic appearance, when the technology is available.(2) With the consent of the defendant, the court must allow a defendant to waive his or her appearance and permit counsel to appear on his or her behalf. The court must accept a defendant's waiver of appearance or personal appearance when: (A) Counsel for the defendant makes an on the record oral representation that counsel has fully discussed the waiver and its implications with the defendant and the defendant has authorized counsel to proceed as counsel represents to the court;(B) Electronic communication from the defendant as confirmed by defendant's counsel; or(C) Any other means that ensures the validity of the defendant's waiver.(c) Consent by the defendant(1) For purposes of arraignment and entry of a not guilty plea, consent means a knowing, intelligent, and voluntary waiver of the right to appear personally in court. Counsel for the defendant must state on the record at each applicable hearing that counsel is proceeding with the defendant's consent.(2) For purposes of waiving time for a preliminary hearing, consent also means a knowing, intelligent, and voluntary waiver of the right to hold a preliminary hearing within required time limits specified either in Penal Code section 859b or under emergency orders issued by the Chief Justice and Chair of the Judicial Council.(3) The court must accept defense counsel's representation that the defendant understands and agrees with waiving any right to appear unless the court has specific concerns in a particular matter about the validity of the waiver.(d) Appearance through counsel(1) When counsel appears on behalf of a defendant, courts must allow counsel to do any of the following: (A) Waive reading and advisement of rights for arraignment.(B) Enter a plea of not guilty.(C) Waive time for the preliminary hearing.(2) For appearances by counsel, including where the defendant is either appearing remotely or has waived his or her appearance and or counsel is appearing by remote access, counsel must confirm to the court at each hearing that the appearance by counsel is made with the consent of the defendant.(e) Conduct of remote hearings(1) With the defendant's consent, a defendant may appear remotely for any pretrial criminal proceeding.(2) Where a defendant appears remotely, counsel may not be required to be personally present with the defendant for any portion of the criminal proceeding provided that the audio and/or video conferencing system or other technology allows for private communication between the defendant and his or her counsel. Any private communication is confidential and privileged under Evidence Code section 952.(f) Sunset of ruleThis rule will sunset on June 30, 2022, unless otherwise amended or repealed by the Judicial Council.
Cal. R. Ct. App I R. R. Emergency Rule 5
Emergency Rule 5 amended effective 3/11/2022; adopted effective 4/6/2020.