California Penal Code 1043.5 – (a) Except as otherwise provided in this section, the defendant …
(a) Except as otherwise provided in this section, the defendant in a preliminary hearing shall be personally present.
(b) The absence of the defendant in a preliminary hearing after the hearing has commenced in their physical presence shall not prevent continuing the hearing to, and including, holding to answer, filing an information, or discharging the defendant in any of the following cases:
Terms Used In California Penal Code 1043.5
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
- state: when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words "United States" may include the district and territories. See California Penal Code 7
- Testify: Answer questions in court.
- will: includes codicil. See California Penal Code 7
(1) Any case in which the defendant, after being warned by the judge that they will be removed if they continued their disruptive behavior, nevertheless insists on acting in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with the defendant present in the courtroom.
(2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.
(c) Any defendant who is absent from a preliminary hearing pursuant to paragraph (1) of subdivision (b) may reclaim their right to be present at the hearing as soon as they are willing to act consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.
(d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive the right to be physically present or to appear through the use of remote technology in accordance with Section 977.
(e) (1) For purposes of subdivision (b), a preliminary hearing shall be deemed to have commenced in the presence of the defendant 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 preliminary hearing.
(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 preliminary hearing will proceed without the defendant being present.
(D) The defendant has been informed that they have the right to remain silent during the preliminary hearing.
(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 preliminary hearing 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 preliminary hearing in which the defendant was personally present in court at the commencement of the preliminary hearing.
(f) This section shall remain in effect only until January 1, 2025, and as of that date is repealed.
(Amended (as amended by Stats. 2022, Ch. 57, Sec. 15) by Stats. 2023, Ch. 190, Sec. 6. (SB 135) Effective September 13, 2023. Repealed as of January 1, 2025, by its own provisions. See later operative version, as amended by Sec. 7 of Stats. 2023, Ch. 190.)