AB 2397, as introduced, 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 allow a court 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. The bill would require a defendant who wishes to be personally present for noncritical portions of trial to submit a written request to the court and would allow the court to grant the request in its discretion. The bill would, if the defendant is represented by counsel, provide that 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. 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.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 977 of the Penal Code is amended to
2read:
(a) (1) In all cases in which the accused is charged with
4a misdemeanor only, he or she may appear by counsel only, except
5as provided in paragraphs (2) and (3). If the accused agrees, the
6initial court appearance, arraignment, and plea may be by video,
7as provided by subdivision (c).
8(2) If the accused is charged with a misdemeanor offense
9involving domestic violence, as defined in Section 6211 of the
10Family Code, or a misdemeanor violation of Section 273.6, the
11accused shall be present for arraignment and sentencing, and at
12any time during the proceedings when ordered by the court for the
13purpose of being informed of the conditions of a protective order
14issued pursuant to Section 136.2.
P3 1(3) If the accused is charged with a misdemeanor offense
2involving driving under the influence, in an appropriate case, the
3court may order a defendant to be present for arraignment, at the
4time of plea, or at sentencing. For purposes of this paragraph, a
5misdemeanor offense involving driving under the influence shall
6include a misdemeanor violation of any of the following:
7(A) Subdivision (b) of Section 191.5.
8(B) Section 23103 as specified in Section 23103.5 of the Vehicle
9Code.
10(C) Section 23152 of the Vehicle Code.
11(D) Section 23153 of the Vehicle Code.
12(b) (1) begin deleteIn end deletebegin insertExcept
as provided in subdivision (c), in end insertall cases in
13which a felony is charged, the accused shall bebegin insert
personallyend insert present
14at the arraignment, at the time of plea, during the preliminary
15hearing, during those portions of the trial when evidence is taken
16before the trier of fact, and at the time of the imposition of
17sentence. The accused shall be personally present at all other
18proceedings unless he or she shall, with leave of court, execute in
19open court, a written waiver of his or her right to be personally
20present, as provided by paragraph (2). If the accused agrees, the
21initial court appearance, arraignment, and plea may be by video,
22as provided by subdivision (c).
23(2) The accused may execute a written waiver of his or her right
24to be personally present, approved by his or her counsel, and the
25waiver shall be filed with the court. However, the court may
26specifically direct the defendant to be personally present at any
27particular proceeding or portion thereof. The waiver shall be
28substantially in the
following form:
32“The undersigned defendant, having been advised of his or her
33right to be present at all stages of the proceedings, including, but
34not limited to, presentation of and arguments on questions of fact
35and law, and to be confronted by and cross-examine all witnesses,
36hereby waives the right to be present at the hearing of any motion
37or other proceeding in this cause. The undersigned defendant
38hereby requests the court to proceed during every absence of the
39defendant that the court may permit pursuant to this waiver, and
40hereby agrees that his or her interest is represented at all times by
P4 1the presence of his or her attorney the same as if the defendant
2were personally present in court, and further agrees that notice to
3his or her attorney that his or her presence in court on a particular
4day at a particular time is required is notice to the defendant of the
5
requirement of his or her appearance at that time and place.”
6(c) begin insert(1)end insertbegin insert end insert The court may permit the initial court appearance and
7arraignment of defendants held in any state, county, or local facility
8within the county on felony or misdemeanor charges, except for
9those defendants who were indicted by a grand jury, to be
10conducted by two-way electronic audiovideo communication
11between the defendant and the courtroom in lieu of the physical
12presence of the defendant in the courtroom. If the defendant is
13represented by counsel, the attorney shall be present with the
14defendant at the initial court appearance and arraignment, and may
15enter a plea during the arraignment. However, if the defendant is
16represented by
counsel at an arraignment on an information in a
17felony case, and if the defendant does not plead guilty or nolo
18contendere to any charge, the attorney shall be present with the
19defendant or if the attorney is not present with the defendant, the
20attorney shall be present in court during the hearing. The defendant
21shall have the right to make his or her plea while physically present
22in the courtroom if he or she so requests. If the defendant decides
23not to exercise the right to be physically present in the courtroom,
24he or she shall execute a written waiver of that right. A judge may
25order a defendant’s personal appearance in court for the initial
26court appearance and arraignment. In a misdemeanor case, a judge
27may, pursuant to this subdivision, accept a plea of guilty or no
28contest from a defendant who is not physically in the courtroom.
29In a felony case, a judge may, pursuant to this subdivision, accept
30a plea of guilty or no contest from a defendant who is not
31physically in the courtroom if the parties
stipulate thereto.
32(d) Notwithstanding subdivision (c), if the defendant is
33represented by counsel, the attorney shall be present with the
34defendant in any county exceeding 4,000,000 persons in
35population.
36(2) (A) The court may require a defendant held in any state,
37county, or local facility within the county on felony or misdemeanor
38charges to be present for noncritical portions of the trial, including,
39but not limited to, confirmation of the preliminary hearing, status
40conferences, trial readiness conferences, discovery motions, receipt
P5 1of records, the setting of the trial date, a motion to vacate the trial
2date, and motions in
limine, by two-way electronic audiovideo
3communication between the defendant and the courtroom in lieu
4of the physical presence of the defendant in the courtroom. A
5defendant who wishes to be personally present for noncritical
6portions of trial shall submit a written request to the court, which
7the court may grant in its discretion. If the defendant is represented
8by counsel, the attorney shall not be required to be personally
9present with the defendant for noncritical portions of the trial, if
10the audiovideo conferencing system or other technology allows
11for private communication between the defendant and the attorney
12prior to and during the noncritical portion of trial. Any private
13communication shall be confidential and privileged pursuant to
14Section 952 of the Evidence Code.
15(B) This paragraph does not expand or limit the right of a
16defendant to be personally present with his or her counsel at a
17particular proceeding as required by Section 15 of Article 1 of the
18California Constitution.
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