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