Bill Text: CA AB2397 | 2013-2014 | Regular Session | Chaptered
Bill Title: Criminal procedure: defendant's appearance by video.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-07-21 - Chaptered by Secretary of State - Chapter 167, Statutes of 2014. [AB2397 Detail]
Download: California-2013-AB2397-Chaptered.html
BILL NUMBER: AB 2397 CHAPTERED
BILL TEXT
CHAPTER 167
FILED WITH SECRETARY OF STATE JULY 21, 2014
APPROVED BY GOVERNOR JULY 21, 2014
PASSED THE SENATE JUNE 26, 2014
PASSED THE ASSEMBLY JUNE 30, 2014
AMENDED IN SENATE JUNE 16, 2014
AMENDED IN ASSEMBLY MAY 12, 2014
INTRODUCED BY Assembly Member Frazier
FEBRUARY 21, 2014
An act to amend Section 977 of the Penal Code, relating to
criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 2397, Frazier. Criminal procedure: defendant's appearance by
video.
Existing law generally requires a defendant in a criminal trial in
which a felony is charged to be present at the arraignment, at the
time of plea, during the preliminary hearing, during those portions
of the trial when evidence is taken before the trier of fact, and at
the time of the imposition of sentence. Existing law requires the
accused to be personally present at all other proceedings unless he
or she executes a written waiver of his or her right to be personally
present. Existing law authorizes a court to permit the initial court
appearance and arraignment of a defendant held in any state, county,
or local facility within the county on felony or misdemeanor
charges, except for those defendants who were indicted by a grand
jury, to be conducted by 2-way electronic audiovideo communication
between the defendant and the courtroom in lieu of the physical
presence of the defendant in the courtroom. Existing law requires the
defendant to execute a written waiver if the defendant decides not
to exercise the right to be physically present in the courtroom to
make his or her plea.
Existing law requires the attorney of a defendant so held to be
present in court during the hearing for an initial court appearance
and arraignment if the attorney is not present with the defendant.
Existing law, notwithstanding this provision, requires the attorney
to be present with the defendant in any county exceeding 4,000,000
persons in population.
This bill would delete the requirement that the attorney be
present in any county exceeding 4,000,000 persons in population. The
bill would authorize a defendant who does not wish to be personally
present for noncritical portions of the trial when no testimonial
evidence is taken to submit an oral waiver in open court prior to the
proceeding, or submit a written request to the court and would allow
the court to grant the request in its discretion. The bill would
allow a court, when a defendant has waived the right to be personally
present, to require the appearance of a defendant held in any state,
county, or local facility within the county on felony or misdemeanor
charges to be conducted by 2-way electronic audiovideo communication
between the defendant and the courtroom in lieu of the physical
presence of the defendant in the courtroom for noncritical portions
of the trial. If the defendant is represented by counsel, the bill
would not require the attorney to be personally present with the
defendant for noncritical portions of the trial, if the audiovideo
conferencing system or other technology allows for private
communication between the defendant and the attorney. The bill would
state that it does not expand or limit the right of a defendant to be
personally present with his or her counsel at a particular
proceeding as required by the California Constitution.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 977 of the Penal Code is amended to read:
977. (a) (1) In all cases in which the accused is charged with a
misdemeanor only, he or she may appear by counsel only, except as
provided in paragraphs (2) and (3). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) If the accused is charged with a misdemeanor offense involving
domestic violence, as defined in Section 6211 of the Family Code, or
a misdemeanor violation of Section 273.6, the accused shall be
present for arraignment and sentencing, and at any time during the
proceedings when ordered by the court for the purpose of being
informed of the conditions of a protective order issued pursuant to
Section 136.2.
(3) If the accused is charged with a misdemeanor offense involving
driving under the influence, in an appropriate case, the court may
order a defendant to be present for arraignment, at the time of plea,
or at sentencing. For purposes of this paragraph, a misdemeanor
offense involving driving under the influence shall include a
misdemeanor violation of any of the following:
(A) Subdivision (b) of Section 191.5.
(B) Section 23103 as specified in Section 23103.5 of the Vehicle
Code.
(C) Section 23152 of the Vehicle Code.
(D) Section 23153 of the Vehicle Code.
(b) (1) Except as provided in subdivision (c), in all cases in
which a felony is charged, the accused shall be personally present at
the arraignment, at the time of plea, during the preliminary
hearing, during those portions of the trial when evidence is taken
before the trier of fact, and at the time of the imposition of
sentence. The accused shall be personally present at all other
proceedings unless he or she shall, with leave of court, execute in
open court, a written waiver of his or her right to be personally
present, as provided by paragraph (2). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) The accused may execute a written waiver of his or her right
to be personally present, approved by his or her counsel, and the
waiver shall be filed with the court. However, the court may
specifically direct the defendant to be personally present at any
particular proceeding or portion thereof. The waiver shall be
substantially in the following form:
"Waiver of Defendant's Personal Presence"
"The undersigned defendant, having been advised of his or her
right to be present at all stages of the proceedings, including, but
not limited to, presentation of and arguments on questions of fact
and law, and to be confronted by and cross-examine all witnesses,
hereby waives the right to be present at the hearing of any motion or
other proceeding in this cause. The undersigned defendant hereby
requests the court to proceed during every absence of the defendant
that the court may permit pursuant to this waiver, and hereby agrees
that his or her interest is represented at all times by the presence
of his or her attorney the same as if the defendant were personally
present in court, and further agrees that notice to his or her
attorney that his or her presence in court on a particular day at a
particular time is required is notice to the defendant of the
requirement of his or her appearance at that time and place."
(c) (1) The court may permit the initial court appearance and
arraignment of defendants held in any state, county, or local
facility within the county on felony or misdemeanor charges, except
for those defendants who were indicted by a grand jury, to be
conducted by two-way electronic audiovideo communication between the
defendant and the courtroom in lieu of the physical presence of the
defendant in the courtroom. If the defendant is represented by
counsel, the attorney shall be present with the defendant at the
initial court appearance and arraignment, and may enter a plea during
the arraignment. However, if the defendant is represented by counsel
at an arraignment on an information in a felony case, and if the
defendant does not plead guilty or nolo contendere to any charge, the
attorney shall be present with the defendant or if the attorney is
not present with the defendant, the attorney shall be present in
court during the hearing. The defendant shall have the right to make
his or her plea while physically present in the courtroom if he or
she so requests. If the defendant decides not to exercise the right
to be physically present in the courtroom, he or she shall execute a
written waiver of that right. A judge may order a defendant's
personal appearance in court for the initial court appearance and
arraignment. In a misdemeanor case, a judge may, pursuant to this
subdivision, accept a plea of guilty or no contest from a defendant
who is not physically in the courtroom. In a felony case, a judge
may, pursuant to this subdivision, accept a plea of guilty or no
contest from a defendant who is not physically in the courtroom if
the parties stipulate thereto.
(2) (A) A defendant who does not wish to be personally present for
noncritical portions of the trial when no testimonial evidence is
taken may make an oral waiver in open court prior to the proceeding
or may submit a written request to the court, which the court may
grant in its discretion. The court may, when a defendant has waived
the right to be personally present, require a defendant held in any
state, county, or local facility within the county on felony or
misdemeanor charges to be present for noncritical portions of the
trial when no testimonial evidence is taken, including, but not
limited to, confirmation of the preliminary hearing, status
conferences, trial readiness conferences, discovery motions, receipt
of records, the setting of the trial date, a motion to vacate the
trial date, and motions in limine, by two-way electronic audiovideo
communication between the defendant and the courtroom in lieu of the
physical presence of the defendant in the courtroom. If the defendant
is represented by counsel, the attorney shall not be required to be
personally present with the defendant for noncritical portions of the
trial, if the audiovideo conferencing system or other technology
allows for private communication between the defendant and the
attorney prior to and during the noncritical portion of trial. Any
private communication shall be confidential and privileged pursuant
to Section 952 of the Evidence Code.
(B) This paragraph does not expand or limit the right of a
defendant to be personally present with his or her counsel at a
particular proceeding as required by Section 15 of Article 1 of the
California Constitution.
