Does a defendant have a valid waiver of his right to be present at the discussion of the penalty phase of the trial?

California, United States of America

The following excerpt is from People v. Castaneda, S085348 (Cal. 2011):

Defendant acknowledges that, " 'as a matter of both federal and state constitutional law, . . . a capital defendant may validly waive presence at critical stages of the trial.' [Citation.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1210.) He contends, however, that (1) his waiver failed to meet the standards associated with waiver of a constitutional right, (2) the trial court erred in failing to obtain a written waiver of his statutory right to be present ( 977, 1043),^²³ (3) the trial

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court's failure to comply with this statutory requirement constitutes a violation of the federal constitutional right to due process of law (see Hicks v. Oklahoma (1980) 447 U.S. 343), and (4) the asserted errors were prejudicial. Defendant's arguments fail because he had neither a constitutional nor a statutory right to be present at the discussion of the penalty phase jury instructions.

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