BILL ANALYSIS Ó AB 2397 Page 1 ASSEMBLY THIRD READING AB 2397 (Frazier) As Amended May 12, 2014 Majority vote PUBLIC SAFETY 7-0 -------------------------------- |Ayes:|Ammiano, Melendez, | | |Jones-Sawyer, Quirk, | | |Skinner, Stone, Waldron | | | | -------------------------------- SUMMARY : Expands the appearances that can be made via two-way video conferences between a defendant housed in a county jail and a courtroom to include specified noncritical trial appearances, if the defendant and defense counsel consent to the defendant's physical absence from court. Specifically, this bill : 1)Provides that courts 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. 2)Specifies that a defendant who does not wish to be personally present for noncritical portions of the trial may make an oral waiver in open court prior to the proceeding or may submit a written waiver to the court, which the court may grant in its discretion. 3)States that 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. AB 2397 Page 2 4)Defines "noncritical portions of the trial" for this section only, as only those appearances which testimonial evidence is not taken. EXISTING LAW : 1)Specifies in all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only, with specified exceptions. If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as specified. a) States that if the accused is charged with a misdemeanor offense involving domestic violence 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. b) Provides 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. 2)Provides in all cases in which a felony is charged, the accused shall 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. 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. If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided. 3)Specifies 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: "The undersigned defendant, having been advised of his AB 2397 Page 3 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." FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS : According to the author, "AB 2397 would change the presumption of appearance of a defendant for non-critical portions of trial from being physically present in court to electronic 2-way audio video communication by allowing a court to require the appearance to be conducted via the 2-way communication system and requiring a defendant who wishes to be physically present to submit written request to the court, to be granted at the court's discretion. "Additionally, AB 2397 would also allow for the defendant's attorney to remain in court for the appearance so long as the technology present that allows for private communication between the defendant and counsel. Any private communication shall remain confidential and privileged pursuant to Section 952 of the Evidence Code. "This bill in no way expands or limits the right of a defendant to be personally present with his or her counsel at any proceeding, as required by the California Constitution. "This change will result in immediate cost savings to the courts and counties that must provide transportation and security for defendants. "Often, the defendant is housed in a facility hours away from AB 2397 Page 4 the court proceeding, necessitating costly processing, transportation arrangements, and staffing to coordinate the transport of the defendant to court. "With the local court budgets being reduced, more cost-effective practices should be put into place that do not interfere with a defendant's right to be present and represented by counsel." Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0003423