§ 1043.5
467 words·~2 min read·
/ca/penal-code/1043-5-2A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(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:
(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 present in accordance with Section 977.
(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 become operative on January 1, 2027.