Can a defendant waive his right to be present at a sentencing?

It is indisputable as a general proposition that sentencing is a "critical stage" of a criminal proceeding. A defendant has a constitutional right to be present at such proceedings. (See People v. Waidla (2000) 22 Cal.4th 690, 741-742.) Although counsel can waive many rights on behalf of his client, a fundamental right such as that to be present at sentencing cannot be so waived.

In this case, it is undisputed that petitioner did not personally waive his presence. Real party in interest argues that any error is immaterial because, given petitioner's history and prior record, he could not have hoped for a better result if he had been present. We acknowledge that petitioner's prospects do not appear bright, but we cannot say beyond a reasonable doubt that the sentencing result was inevitable. (See Chapman v. California (1967) 386 U.S. 18.) The record reflects that trial counsel did not argue (although there were apparently off-the-record discussions in chambers) and merely submitted the matter. He had not communicated with petitioner, who was unaware of the hearing. We cannot conclude that petitioner's presence and input into the hearing would necessarily have been fruitless.