Can a defendant waive section 190.1(b) of the California Statutory Right to be present at trial during the taking of evidence?

The reason for this is clear. Generally, permitting waiver "`is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights.' [Citation.]" (Cowan v. Superior Court, supra, 14 Cal.4th at p. 371, 58 Cal.Rptr.2d 458, 926 P.2d 438.) A defendant may waive a right that exists for his or her own benefit, where such waiver is not against public policy. (Ibid.)

Defendant offers no convincing reason why section 190.1(b) should be construed to preclude him and other capital defendants from waiving its benefits if they believe it is in their best interests to do so. This is not a situation where the statute itself prohibits or limits waivers. (Cf. People v. Jackson (1996) 13 Cal.4th 1164, 1209-1211, 56 Cal.Rptr.2d 49, 920 P.2d

[28 Cal.4th 142]

1254 [defendant charged with a felony may not voluntarily waive statutory right under sections 977 and 1043 to be present at trial during the taking of evidence].) Nor is public policy violated by an affirmative, knowing, and voluntary waiver of the statutory right where, as here, a capital defendant and his counsel determine that the circumstances before them make such a waiver desirable.

[28 Cal.4th 142]