BILL NUMBER: AB 2397	INTRODUCED
	BILL TEXT


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, 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 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)  In   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. 
   (d) Notwithstanding subdivision (c), if the defendant is
represented by counsel, the attorney shall be present with the
defendant in any county exceeding 4,000,000 persons in population.
 
   (2) (A) The court may 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,
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. A defendant who wishes to be personally present for
noncritical portions of trial shall submit a written request to the
court, which the court may grant in its discretion. 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.