Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed the 10-year sentence.
My Comment: I don’t know about this. I mean, how do you prove that the denial of your right to an in-person hearing hurt you? Here are some possible ideas:
• If you have poor audio or connection quality, say so, early and often.
• If you struggle with or are distracted by the virtual software interface, say so — again, early and often.
• If someone is speaking off camera, like a clerk, alert the court that you cannot see who is speaking.
• If you have an opportunity to speak and you would prefer to stand, tell the court you would like to do so, but that you will need to adjust your camera and microphone. Insist that the court indulge you for as long as that process takes.
• Maybe you like to gesticulate while speaking? You should indicate you are making hand movements but that you are not sure if they are all within the frame.
• Maybe you move your head from side to side or modulate your voice when speaking? You should note that you are not sure whether the microphone is picking up everything.
• In short, demonstrate that conducting the hearing virtually rather than traditionally was distracting, limited your presentation, and ultimately prevented you from the most effective advocacy possible.
What do you think, #AppellateLinkedIn? Will these ideas work?