Bill Text: CA SB99 | 2023-2024 | Regular Session | Amended

California Senate Bill 99

Bill Title: Courts: remote proceedings for criminal cases.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2023-07-11 - July 11 set for first hearing canceled at the request of author. [SB99 Detail]

Download: California-2023-SB99-Amended.html

Amended IN Senate April 10, 2023

Amended IN Senate March 14, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 99

Introduced by Senator Umberg

January 18, 2023

An act to ~~add and repeal Section 68517 of the Government Code,~~ amend Section 71651.1 of the Government Code, and to amend Sections 977, 977.3, and 1043.5 of the Penal Code, relating to courts.

LEGISLATIVE COUNSEL'S DIGEST

SB 99, as amended, Umberg. ~~Judicial Council: collaborative courts.~~ Courts: remote proceedings for criminal cases.

Existing law prohibits, until January 1, 2024, a trial court from retaliating against an official court reporter or official court reporter pro tempore for notifying a judicial officer that technology or audibility issues are interfering with the creation of the verbatim record for a remote criminal proceeding.
This bill would extend this provision until January 1, 2028.
Existing law allows a defendant in a misdemeanor case to appear by counsel, except as specified. Until January 1, 2024, existing law allows a court to conduct all proceedings, except jury and court trials, remotely through the use of remote technology if a defendant agrees. Existing law requires a defendant in a felony case to be physically present 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 allows, until January 1, 2024, a defendant to be physically or remotely present at all other proceedings, unless the defendant waived their right to be physically or remotely present with leave of the court and approval by the defendant’s counsel.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Existing law generally allows, until January 1, 2024, upon a defendant’s waiver of the right to be physically present, criminal proceedings to be conducted through the use of remote technology. Commencing on January 1, 2024, existing law authorizes a court to permit the initial court appearance and arraignment of a defendant held in any state, county, or local facility, under specified circumstances, to be conducted by 2-way electronic audiovideo communication between the defendant and the courtroom in lieu of the defendant’s physical presence.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028, and extend the implementation of provisions that would commence on January 1, 2024, until January 1, 2028.
Existing law authorizes the court, until January 1, 2024, to direct the defendant to be physically present at any particular felony proceeding, prohibits a defendant charged with a felony from appearing remotely for sentencing, except as specified, and prohibits a defendant charged with a felony or misdemeanor from appearing remotely for a jury or court trial, except as specified.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Existing law, until January 1, 2024, authorizes the court to allow a prosecuting attorney or defense counsel to participate in a criminal proceeding through the use of remote technology, requires a court to require a prosecuting attorney, defense counsel, defendant, or witness to appear in person at a proceeding under specified circumstances, and requires a reporter to be physically present in the courtroom when the court conducts a remote proceeding that is reported.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Existing law authorizes, until January 1, 2024, a witness in a criminal proceeding to testify using remote technology, as provided by statutes regarding the examination of victims of sexual crimes and conditional examinations of witnesses.
This bill would extend these provisions until January 1, 2028, and broaden the provisions to testifying remotely as otherwise provided by any law.
Existing law requires a defendant to be personally present in a preliminary hearing unless otherwise specified. Existing law prohibits these provisions from limiting the right of a defendant to waive the right to be present. Existing law, until January 1, 2024, prohibits the defendant’s right to waive the right to appear through the use of remote technology from being limited by these provisions.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
The California Constitution vests the judicial power of the state in the Supreme Court, courts of appeal, and superior courts, and establishes the Judicial Council to, among other things, adopt rules of court and perform functions prescribed by statute. Existing law authorizes a referral to collaborative courts pursuant to, among other circumstances, a pretrial diversion program for primary caregivers.
~~This bill would require, before January 1, 2025, the Judicial Council to submit a study to the Legislature on the successes and best practices of collaborative courts in the state, as specified.~~

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 71651.1 of the Government Code is amended to read:

71651.1.

(a) Consistent with federal and California labor law, a trial court shall not retaliate against an official reporter or official reporter pro tempore who notifies the judicial officer that technology or audibility issues are interfering with the creation of the verbatim record for a remote proceeding pursuant to subdivisions (f) and (g) of Section 977 of the Penal Code.

(b) This section shall remain in effect only until January 1, ~~2024,~~ 2028, and as of that date is repealed.

SEC. 2.

Section 977 of the Penal Code, as amended by Section 12 of Chapter 57 of the Statutes of 2022, is amended to read:

977.

(a) (1) In all cases in which the accused is charged with a misdemeanor only, they may appear by counsel only, except as provided in paragraphs (2) and (3). If the accused agrees, the initial court appearance, arraignment, plea, and all other proceedings, except jury and court trials, may be conducted remotely through the use of technology, 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.

(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 physically 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 physically or remotely present at all other proceedings unless they waive their right to be physically or remotely present, with leave of court and with approval by the defendant’s counsel.

(2) The waiver of a defendant’s right to be physically or remotely present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record.

(A) A defendant’s personal waiver of the right to be physically or remotely present shall be on the record and state that the defendant has been advised of the right to be physically or remotely present for the hearing at issue and agrees that notice to the attorney that the defendant’s physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement.

(B) A waiver of the defendant’s physical or remote presence may be entered by counsel, after counsel has stated on the record that the defendant has been advised of the right to be physically or remotely present for the hearing at issue, has waived that right, and agrees that notice to the attorney that the defendant’s physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement.

(3) The court may specifically direct the defendant, either personally or through counsel, to be physically or remotely present at any particular proceeding or portion thereof, including upon request of a victim, to the extent required by Section 28 of Article I of the California Constitution.

(4) A written waiver of the defendant’s physical or remote presence shall be substantially in the following form:

“Waiver of Defendant’s Physical or Remote Presence”

“The undersigned defendant, having been advised of their 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 knowingly, intelligently, and voluntarily waives the right to be physically or remotely 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 their interest is represented at all times by the presence of their attorney the same as if the defendant were physically or remotely present in court, and further agrees that notice to their attorney that their physical or remote presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of their physical or remote appearance at that time and place.”

(c) (1) (A) Upon waiver of the right to be physically present by the defendant, criminal proceedings may be conducted through the use of remote technology, except as provided in subparagraphs (D) and (E). The defendant may withdraw the waiver at any time.

(B) The court may specifically direct the defendant, either personally or through counsel, to be physically present at any particular felony proceeding or portion thereof, including as provided in subdivision (f).

(C) If the defendant is represented by counsel, the attorney shall not be required to be physically present with the defendant if remote technology allows for private communication between the defendant and the attorney prior to and during the proceeding, unless, upon request of defense counsel, the court allows the appearance without private communication. Any private communication shall be confidential and privileged pursuant to Section 952 of the Evidence Code.

(D) A defendant charged with a felony or misdemeanor shall not appear remotely for a jury trial or court trial, except as provided in subparagraph (A) of paragraph (2).

(E) A defendant charged with a felony shall not appear remotely at sentencing, except for postconviction relief proceedings and as otherwise provided by law.

(F) A witness may appear at any misdemeanor or felony criminal proceeding, except for felony trial, remotely pursuant to ~~section~~ Section 977.3.

(2) (A) A felony defendant who does not wish to be physically or remotely 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.

(B) This paragraph does not expand or limit the right of a defendant to be personally present with their counsel at a particular proceeding as required by Section 15 of Article 1 of the California Constitution.

(d) (1) Notwithstanding any other provision in this section, the court may allow a defendant to appear by counsel on that day, at a trial, hearing, or other proceeding, with or without a written waiver, if the court finds, by clear and convincing evidence, all of the following to be true:

(A) The defendant is in custody and is refusing, without good cause, to appear in court on that day for that trial, hearing, or other proceeding.

(B) The defendant has been informed of their right and obligation to be personally present in court.

(C) The defendant has been informed that the trial, hearing, or other proceeding will proceed without the defendant being present.

(D) The defendant has been informed that they have the right to remain silent during the trial, hearing, or other proceeding.

(E) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront any witnesses against them or to testify on their own behalf.

(F) The defendant has been informed whether or not defense counsel will be present.

(2) The court shall state on the record the reasons for the court’s findings and shall cause those findings and reasons to be entered into the minutes.

(3) If the trial, hearing, or other proceeding lasts for more than one day, the court is required to make the findings required by this subdivision anew for each day that the defendant is absent.

(4) This subdivision does not apply to any trial, hearing, or other proceeding in which the defendant was personally present in court at the commencement of the trial, hearing, or other proceeding.

(e) A court may, as appropriate and practicable, allow a prosecuting attorney or defense counsel to participate in a criminal proceeding through the use of remote technology without being physically present in the courtroom and in accordance with subdivision (f).

(f) Except as otherwise provided by law, the court shall require a prosecuting attorney, defense counsel, defendant, or witness to appear in person at a proceeding, if any of the following conditions are present and cannot be resolved in a reasonable amount of time:

(1) The court does not have the technology necessary to conduct the proceeding remotely.

(2) Although the court has the requisite technology, the quality of the technology or audibility at a proceeding prevents the effective management or resolution of the proceeding.

(3) The quality of the technology or audibility at a proceeding inhibits the court reporter’s ability to accurately prepare a transcript of the proceeding.

(4) The quality of the technology or audibility at a proceeding prevents defense counsel from being able to provide effective representation to the defendant.

(5) The quality of the technology or audibility at a proceeding inhibits a court interpreter’s ability to provide language access, including the ability to communicate and translate directly with the defendant and the court during the proceeding.

(g) (1) Before the court may proceed with a remote proceeding, the court shall have a process for a defendant, defense counsel, prosecuting attorney, witness, official reporter, official reporter pro tempore, court interpreter, or other court personnel to alert the judicial officer of technological or audibility issues that arise during the proceeding.

(2) When the court conducts a remote proceeding that will be reported by an official reporter or official reporter pro tempore, the reporter shall be physically present in a courtroom.

(h) The court shall make findings on the record that any waiver entered into pursuant to this section is knowingly, voluntarily, and intelligently made by the defendant.

(i) The Judicial Council shall adopt rules and standards that are necessary to implement the policies and provisions of this section and the intent of the Legislature.

(j) This section shall remain in effect only until January 1, ~~2024,~~ 2028, and as of that date is repealed.

SEC. 3.

Section 977 of the Penal Code, as added by Section 13 of Chapter 57 of the Statutes of 2022, is amended to read:

977.

(a) (1) In all cases in which the accused is charged with a misdemeanor only, they 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).

(A) Subdivision (b) of Section 191.5.

(B) Section 23103 as specified in Section 23103.5 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 they shall, with leave of court, execute in open court, a written waiver of their 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 their right to be personally present, approved by their 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 their 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 their interest is represented at all times by the presence of their attorney the same as if the defendant were personally present in court, and further agrees that notice to their attorney that their presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of their 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 their plea while physically present in the courtroom if they request to do so. If the defendant decides not to exercise the right to be physically present in the courtroom they 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.