BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2397 (Frazier) 7
As Amended May 12, 2014
Hearing date: June 10, 2014
Penal Code
MK:mc
CRIMINAL PROCEDURE:
DEFENDANT'S APPEARANCE BY VIDEO
HISTORY
Source: California State Sheriffs' Association
Prior Legislation: AB 2102 (Lieu) - not heard in Senate Public
Safety, 2010
AB 2174 (Villines) - Chapter 744, Stats. 2006
AB 383 (Cohn) - Chapter 29, Stats. 2003
AB 477 (Cohn) - Chapter 82, Stats. 2001
Support: California State Association of Counties
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE APPEARANCES THAT CAN BE MADE VIA TWO-WAY VIDEO CONFERENCE
BE EXPANDED TO INCLUDE ANY APPEARANCE IN WHICH TESTIMONIAL EVIDENCE
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IS NOT TAKEN PROVIDED THAT THE DEFENDANT AND THE DEFENSE COUNSEL
CONSENT?
PURPOSE
The purpose of this bill is to expand 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 does not wish to
be personally present.
Existing law states in all cases in which the accused is charged
with a misdemeanor only, he or she may appear by counsel only,
except in specified domestic violence related or driving under
the influence matters. If the accused agrees, the initial court
appearance, arraignment, and plea, may be by video, as provided.
(Penal Code § 977(a)(1).)
Existing law provides that if the accused is charged with a
misdemeanor offense involving domestic violence, as defined, or
a misdemeanor violation of a restraining order, 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. (Penal Code § 977(a)(2).)
Existing law 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. For
purposes of this paragraph, a misdemeanor offense involving
driving under the influence shall include a misdemeanor
violation of specified offenses. (Penal Code § 977(a)(3).)
Existing law states in all cases in which a felony is charged,
the accused shall be present at the arraignment, at the time of
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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. (Penal Code § 977(b)(1).)
Existing law provides that 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. (Penal Code § 977(b)(2).)
Existing law states that 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
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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. (Penal Code
§ 977(c).)
This bill provides that the court may require a defendant 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
record, 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.
This bill provides that a defendant who does not wish to be
personally present for noncritical portions of trial may make an
oral waiver in open court prior to the proceeding or may submit
a written request to the court, which the court may grant in its
discretion.
This bill provides 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 the
trial and that any private communication shall be confidential
and privileged.
This bill specifically states 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.
This bill provides that noncritical portions of the trial shall
only include appearances in which testimonial evidence is not
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taken.
Existing law provides that notwithstanding (c), if the defendant
is represented by counsel, the attorney shall be present with
the defendant in any county exceeding 4,000,000 in population.
(Penal Code § 977 (d).)
This bill deletes the above provision.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
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California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
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141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Need for This Bill
According to the author:
Often times during a trial the defendant is transported
back and forth from a local facility to the court for
noncritical portions of a trial that take very little
time. This results in costly processing,
transportation arrangements, staffing needed to
coordinate the transport of the defendant to court as
well as an increased security risk to both law
enforcement and the public.
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.
AB 2397 allows with the defendants consent by oral or
written waiver to appear by two-way audio video
communications for noncritical portions of a trial,
including but not limited to, confirmation of
preliminary hearing, status conferences, trial
readiness conferences, discovery motions, receipt of
record, and the setting of a trial date.
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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 will result in maximized cost savings,
enhanced safety, and greater flexibility while
retaining all rights currently given to defendants
under the United States and California Constitutions.
2. Appearance by Video Conference
Under current law, a defendant may appear by video conferencing
at the first appearance of the case, instruction and
arraignment, or at the time of a plea. Often, a defendant
waives instruction and arraignment and enters a plea of not
guilty.
This bill expands the use of video conferencing to any court
appearance which does not involve the taking of testimony.
Matters such as motions to continue a trial or a hearing, case
conferences, and other routine scheduling matters would now be
covered by this legislation. The defendant must opt-in to the
video conferencing if he or she does not wish to be personally
present at one of these proceedings. The defendant will do so
by making either an oral waiver in open court prior to the
proceeding or by submitting a written request to the court.
The bill also provides that the defense attorney does not have
to be physically present with the defendant but if the
technology allows for private communication between the
defendant and his or her attorney, this should be allowed and
will be considered private and confidential.
The language in this bill is a bit awkward. It starts off
saying the court may require a defendant to appear by two-way
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electronic audiovideo communication but then refers to a
defendant who does not wish to appear in person providing a
waiver. It should probably be redrafted to make the fact that
the defendant is opting not to appear in person clearer.
3. Removes L.A. Exemption
Existing law provides that, notwithstanding the provision
allowing for arraignment by two-way electronic audiovideo
communication, if the defendant is represented by counsel, the
attorney shall be present with the defendant in Los Angeles
County. (Penal Code § 977 (d).) This bill deletes the above
provision. It is unclear from the history why Los Angeles was
exempted.
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