BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2397
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          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.








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          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
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            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  








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          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 


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