Bill Text: CA AB2217 | 2009-2010 | Regular Session | Enrolled
Bill Title: Jurors: electronic communications.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2010-09-23 - Vetoed by Governor. [AB2217 Detail]
Download: California-2009-AB2217-Enrolled.html
BILL NUMBER: AB 2217 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 12, 2010
PASSED THE ASSEMBLY AUGUST 17, 2010
AMENDED IN SENATE AUGUST 3, 2010
AMENDED IN ASSEMBLY MARCH 25, 2010
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 18, 2010
An act to amend Sections 611, 613, and 1209 of the Code of Civil
Procedure, and to amend Sections 166, 1122, and 1128 of the Penal
Code, relating to jurors.
LEGISLATIVE COUNSEL'S DIGEST
AB 2217, Fuentes. Jurors: electronic communications.
(1) Existing law requires the court in a jury trial to admonish
the jury that it is their duty not to converse with, or permit
themselves to be addressed by, any other person on any subject of the
trial. The court is required to provide the admonishment in a civil
proceeding when the jurors are permitted to separate during the
trial, and when the case is submitted to the jury, and, in a criminal
proceeding, after the jury has been sworn and before the people's
opening address, at each adjournment of the court, and when the
jurors are permitted by the court to separate after the case is
submitted to the jury. An officer having the jury under his or her
charge shall not permit any communication to be made to them, or make
any himself or herself, as specified.
This bill would expand those admonishments to include the conduct
of research or dissemination of information on any subject of the
trial. The bill would require the court, when admonishing the jury
against conversation, research, or dissemination of information
pursuant to these provisions, to clearly explain, as part of the
admonishment, that the prohibition applies to all forms of electronic
and wireless communication. The bill would require the officer in
charge of a jury to prevent any form of electronic or wireless
communication.
(2) Existing law provides that certain acts or omissions in
respect to a court of justice, or proceedings therein, are civil
contempts of the authority of the court, including, among other
things, disobedience of any lawful judgment, order, or process of the
court. Existing law also specifies certain criminal contempts of
court, punishable as a misdemeanor, including, among other things,
resistance willfully offered by a person to the lawful order or
process of a court.
This bill would make the willful disobedience by a juror of a
court admonishment related to the prohibition on any form of
communication or research about the case, including all forms of
electronic or wireless communication or research, punishable as
either a civil or criminal contempt of court pursuant to those
provisions. By expanding the scope of an existing crime, the bill
would impose a state-mandated local program.
(3) This bill would incorporate additional changes in Section 166
of the Penal Code made by AB 2632 that would become operative if both
bills are enacted and this bill is enacted after AB 2632.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 611 of the Code of Civil Procedure is amended
to read:
611. If the jury are permitted to separate, either during the
trial or after the case is submitted to them, they shall be
admonished by the court that it is their duty not to conduct
research, disseminate information, or converse with, or permit
themselves to be addressed by, any other person on any subject of the
trial, and that it is their duty not to form or express an opinion
thereon until the case is finally submitted to them. The court shall
clearly explain, as part of the admonishment, that the prohibition on
research, dissemination of information, and conversation applies to
all forms of electronic and wireless communication.
SEC. 2. Section 613 of the Code of Civil Procedure is amended to
read:
613. When the case is finally submitted to the jury, they may
decide in court or retire for deliberation. If they retire, they must
be kept together in some convenient place, under charge of an
officer, until at least three-fourths of them agree upon a verdict or
are discharged by the court. Unless by order of the court, the
officer having them under his or her charge shall not permit any
communication to be made to them, including any form of electronic or
wireless communication, or make any himself or herself, except to
ask them if they or three-fourths of them are agreed upon a verdict.
The officer shall not, before their verdict is rendered, communicate
to any person the state of their deliberations, or the verdict agreed
upon.
SEC. 3. Section 1209 of the Code of Civil Procedure is amended to
read:
1209. (a) The following acts or omissions in respect to a court
of justice, or proceedings therein, are contempts of the authority of
the court:
(1) Disorderly, contemptuous, or insolent behavior toward the
judge while holding the court, tending to interrupt the due course of
a trial or other judicial proceeding.
(2) A breach of the peace, boisterous conduct, or violent
disturbance, tending to interrupt the due course of a trial or other
judicial proceeding.
(3) Misbehavior in office, or other willful neglect or violation
of duty by an attorney, counsel, clerk, sheriff, coroner, or other
person, appointed or elected to perform a judicial or ministerial
service.
(4) Abuse of the process or proceedings of the court, or falsely
pretending to act under authority of an order or process of the
court.
(5) Disobedience of any lawful judgment, order, or process of the
court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(7) Rescuing any person or property in the custody of an officer
by virtue of an order or process of that court.
(8) Unlawfully detaining a witness or party to an action while
going to, remaining at, or returning from the court where the action
is on the calendar for trial.
(9) Any other unlawful interference with the process or
proceedings of a court.
(10) Disobedience of a subpoena duly served, or refusing to be
sworn or answer as a witness.
(11) When summoned as a juror in a court, neglecting to attend or
serve as a juror, or improperly conversing with a party to an action
to be tried at the court, or with any other person, in relation to
the merits of the action, or receiving a communication from a party
or other person in respect to the action, without immediately
disclosing the communication to the court.
(12) Disobedience by an inferior tribunal or judicial officer of
the lawful judgment, order, or process of a superior court, or
proceeding in an action or special proceeding contrary to law, after
the action or special proceeding is removed from the jurisdiction of
the inferior tribunal or judicial officer.
(b) A speech or publication reflecting upon or concerning a court
or an officer thereof shall not be treated or punished as a contempt
of the court unless made in the immediate presence of the court while
in session and in such a manner as to actually interfere with its
proceedings.
(c) Notwithstanding Section 1211 or any other law, if an order of
contempt is made affecting an attorney, his or her agent,
investigator, or any person acting under the attorney's direction, in
the preparation and conduct of an action or proceeding, the
execution of any sentence shall be stayed pending the filing within
three judicial days of a petition for extraordinary relief testing
the lawfulness of the court's order, the violation of which is the
basis of the contempt, except for conduct proscribed by subdivision
(b) of Section 6068 of the Business and Professions Code, relating to
an attorney's duty to maintain respect due to the courts and
judicial officers.
(d) Notwithstanding Section 1211 or any other law, if an order of
contempt is made affecting a public safety employee acting within the
scope of employment for reason of the employee's failure to comply
with a duly issued subpoena or subpoena duces tecum, the execution of
any sentence shall be stayed pending the filing within three
judicial days of a petition for extraordinary relief testing the
lawfulness of the court's order, a violation of which is the basis
for the contempt.
As used in this subdivision, "public safety employee" includes any
peace officer, firefighter, paramedic, or any other employee of a
public law enforcement agency whose duty is either to maintain
official records or to analyze or present evidence for investigative
or prosecutorial purposes.
SEC. 4. Section 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d), a
person guilty of any of the following contempts of court is guilty of
a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of a court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior specified in paragraph (1) that is committed in the
presence of a referee, while actually engaged in a trial or hearing,
pursuant to the order of a court, or in the presence of a jury while
actually sitting for the trial of a cause, or upon an inquest or
other proceeding authorized by law.
(3) A breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of the court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by a court,
including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of a court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(7) The contumacious and unlawful refusal of a person to be sworn
as a witness or, when so sworn, the like refusal to answer a material
question.
(8) The publication of a false or grossly inaccurate report of the
proceedings of a court.
(9) Presenting to a court having power to pass sentence upon a
prisoner under conviction, or to a member of the court, an affidavit,
testimony, or representation of any kind, verbal or written, in
aggravation or mitigation of the punishment to be imposed upon the
prisoner, except as provided in this code.
(b) (1) A person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), a
willful and knowing violation of a protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) An order issued pursuant to Section 6320 or 6389 of the Family
Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of an order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under subdivision (g)
of Section 12021.
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097 of the Penal Code.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For an order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall an order to make
payments to a battered women's shelter be made if it would impair
the ability of the defendant to pay direct restitution to the victim
or court-ordered child support.
(4) If the injury to a married person is caused in whole, or in
part, by the criminal acts of his or her spouse in violation of
subdivision (c), the community property shall not be used to
discharge the liability of the offending spouse for restitution to
the injured spouse required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents required by this
subdivision, until all separate property of the offending spouse is
exhausted.
(5) A person violating an order described in subdivision (c) may
be punished for any substantive offenses described under Section
136.1 or 646.9. A finding of contempt shall not be a bar to
prosecution for a violation of Section 136.1 or 646.9. However, a
person held in contempt for a violation of subdivision (c) shall be
entitled to credit for any punishment imposed as a result of that
violation against any sentence imposed upon conviction of an offense
described in Section 136.1 or 646.9. A conviction or acquittal for a
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 4.5. Section 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d), a
person guilty of any of the following contempts of court is guilty of
a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of a court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior specified in paragraph (1) that committed in the
presence of a referee, while actually engaged in a trial or hearing,
pursuant to the order of a court, or in the presence of a jury while
actually sitting for the trial of a cause, or upon an inquest or
other proceeding authorized by law.
(3) A breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of the court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by a court,
including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of a court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(7) The contumacious and unlawful refusal of a person to be sworn
as a witness or, when so sworn, the like refusal to answer a material
question.
(8) The publication of a false or grossly inaccurate report of the
proceedings of a court.
(9) Presenting to a court having power to pass sentence upon a
prisoner under conviction, or to a member of the court, an affidavit,
testimony, or representation of any kind, verbal or written, in
aggravation or mitigation of the punishment to be imposed upon the
prisoner, except as provided in this code.
(10) Willful disobedience of the terms of any injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by any court, including an order pending
trial.
(b) (1) A person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), a
willful and knowing violation of a protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) An order issued pursuant to Section 6320 or 6389 of the Family
Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of an order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under subdivision (g)
of Section 12021.
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097 of the Penal Code.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For an order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall an order to make
payments to a battered women's shelter be made if it would impair
the ability of the defendant to pay direct restitution to the victim
or court-ordered child support.
(4) If the injury to a married person is caused in whole or in
part by the criminal acts of his or her spouse in violation of
subdivision (c), the community property shall not be used to
discharge the liability of the offending spouse for restitution to
the injured spouse required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents required by this
subdivision, until all separate property of the offending spouse is
exhausted.
(5) A person violating an order described in subdivision (c) may
be punished for any substantive offenses described under Section
136.1 or 646.9. A finding of contempt shall not be a bar to
prosecution for a violation of Section 136.1 or 646.9. However, a
person held in contempt for a violation of subdivision (c) shall be
entitled to credit for any punishment imposed as a result of that
violation against any sentence imposed upon conviction of an offense
described in Section 136.1 or 646.9. A conviction or acquittal for a
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 5. Section 1122 of the Penal Code is amended to read:
1122. (a) After the jury has been sworn and before the people's
opening address, the court shall instruct the jury generally
concerning its basic functions, duties, and conduct. The instructions
shall include, among other matters, all of the following
admonitions:
(1) That the jurors shall not converse among themselves, or with
anyone else, conduct research, or disseminate information on any
subject connected with the trial. The court shall clearly explain, as
part of the admonishment, that the prohibition on conversation
research, and dissemination of information applies to all forms of
electronic and wireless communication.
(2) That they shall not read or listen to any accounts or
discussions of the case reported by newspapers or other news media.
(3) That they shall not visit or view the premises or place where
the offense or offenses charged were allegedly committed or any other
premises or place involved in the case.
(4) That prior to, and within 90 days of, discharge, they shall
not request, accept, agree to accept, or discuss with any person
receiving or accepting, any payment or benefit in consideration for
supplying any information concerning the trial.
(5) That they shall promptly report to the court any incident
within their knowledge involving an attempt by any person to
improperly influence any member of the jury.
(b) The jury shall also, at each adjournment of the court before
the submission of the cause to the jury, whether permitted to
separate or kept in charge of officers, be admonished by the court
that it is their duty not to conduct research, disseminate
information, or converse among themselves, or with anyone else, on
any subject connected with the trial, or to form or express any
opinion about the case until the cause is finally submitted to them.
The court shall clearly explain, as part of the admonishment, that
the prohibition on research, dissemination of information, and
conversation applies to all forms of electronic and wireless
communication.
SEC. 6. Section 1128 of the Penal Code is amended to read:
1128. After hearing the charge, the jury may either decide in
court or may retire for deliberation. If they do not agree without
retiring for deliberation, an officer shall be sworn to keep them
together for deliberation in some private and convenient place, and,
during the deliberation, not to permit any person to speak to or
communicate with them, including any form of electronic or wireless
communication, nor to do so himself or herself, unless by order of
the court, or to ask them whether they have agreed upon a verdict,
and to return them into court when they have so agreed, or when
ordered by the court. The court shall fix the time and place for
deliberation. The jurors shall not deliberate on the case except
under those circumstances. If the jurors are permitted by the court
to separate, the court shall properly admonish them as provided in
subdivision (b) of Section 1122. If the jury is composed of both men
and women, and the jurors are not permitted by the court to separate,
in the event that it becomes necessary to retire for the night, the
women shall be kept in a room or rooms separate and apart from the
men.
SEC. 7. Section 4.5 of this bill incorporates amendments to
Section 166 of the Penal Code proposed by both this bill and AB 2632.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2011, (2) each bill amends
Section 166 of the Penal Code, and (3) this bill is enacted after AB
2632, in which case Section 4 of this bill shall not become
operative.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
