BILL NUMBER: SB 1126 CHAPTERED 10/10/99 CHAPTER 888 FILED WITH SECRETARY OF STATE OCTOBER 10, 1999 APPROVED BY GOVERNOR OCTOBER 9, 1999 PASSED THE SENATE SEPTEMBER 9, 1999 PASSED THE ASSEMBLY SEPTEMBER 3, 1999 AMENDED IN ASSEMBLY SEPTEMBER 2, 1999 AMENDED IN ASSEMBLY AUGUST 16, 1999 AMENDED IN ASSEMBLY JUNE 16, 1999 INTRODUCED BY Senator Costa FEBRUARY 26, 1999 An act to amend Sections 977.2 and 1202.41 of, and to add Section 1202.46 to, the Penal Code, and to add Items 5240-103 and 5240-493 to Section 2.00 of the Budget Act of 1999, relating to corrections, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 1126, Costa. Criminal procedure: arraignment: audiovideo. Existing law authorizes the Department of Corrections to establish a 3-year pilot project at more than 5 institutions that permits the initial court appearance and arraignment of a defendant in municipal or superior court to be conducted by 2-way electronic audiovideo communication in all cases where the defendant is charged with a misdemeanor or a felony and is currently incarcerated in the state prison. Existing law also provides that the provisions creating this project are repealed as of January 1, 2000, and requires the department to prepare and submit a report on the pilot project to the Legislature on or before January 1, 2000. This bill would delete from these provisions the language that establishes a pilot project. The bill also would delete the reporting requirement and the repeal provision, thereby extending the provisions of the bill indefinitely. Existing law establishes a pilot program to enable collaboration between the State Board of Control and judges in the counties in the program in connection with amending restitution orders. Under the program, among other things, if the hearing has not been waived, the State Board of Control determines if the cost of holding the hearing is justified. This bill would in addition, in the case of a defendant who is incarcerated, authorize the above-described hearings to be held via 2-way audiovideo communication between the defendant and the court, as specified. This bill also would specify that these provisions shall not be construed to prohibit an individual or district attorney's office from independently pursuing the imposition or amendment of a restitution order that may result in a hearing, regardless of whether the victim has received assistance. The bill further would require the court to retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined when the economic losses of a victim cannot be ascertained at the time of sentencing. Existing law provides for local assistance to community correctional programs. This bill would appropriate $1,748,429 to Department of Corrections to be allocated to the City of Coalinga to provide equity regarding community correctional facility contract issues. Existing law makes various appropriations to the Department of Corrections for various purposes related to the operation of the department and the maintenance of facilities and equipment under the control of the department. This bill would make reappropriations from the General Fund and from the 1986 Prison Construction Fund to the department for specified purposes related to prison construction. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 977.2 of the Penal Code is amended to read: 977.2. (a) Notwithstanding Section 977 or any other law, in all cases in which the defendant is charged with a misdemeanor or a felony and is currently incarcerated in the state prison, the Department of Corrections may arrange for the initial court appearance and arraignment in municipal or superior court 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. Nothing in this section shall be interpreted to eliminate the authority of the court to issue an order requiring the defendant to be physically present in the courtroom in those cases where the court finds circumstances that require the physical presence of the defendant in the courtroom. (b) 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 initial hearing in superior court 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. (c) In lieu of the physical presence of the defendant's counsel at the institution with the defendant, the court and the department shall establish a confidential telephone and facsimile transmission line between the court and the institution for communication between the defendant's counsel in court and the defendant at the institution. In this case, counsel for the defendant shall not be required to be physically present at the institution during the initial court appearance and arraignment via electronic audiovideo communication. Nothing in this section shall be construed to prohibit the physical presence of the defense counsel with the defendant at the state prison. SEC. 2. Section 1202.41 of the Penal Code is amended to read: 1202.41. (a) There is created within the State Board of Control a four-year pilot program for the purpose of collaborating with judges to amend restitution orders imposed pursuant to Section 1202.4 of this code and Section 730.6 of the Welfare and Institutions Code to the extent that the victim has received assistance pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code. (b) The program shall commence 30 days after the effective date of this section and shall include restitution orders imposed by courts in the regional judicial assignments as determined by the Judicial Council, and Court Operation Services encompassing the Counties of Sacramento, San Diego, and Alameda. The State Board of Control, with the assistance of the Judicial Council, shall collaborate with judges in each of the three participating regional judicial assignments. (c) (1) Notwithstanding Section 977 or any other law, in all cases in which the defendant is currently incarcerated in a state prison with two-way audiovideo communication capability, the Department of Corrections, at the request of the Board of Control, may arrange for a hearing to impose or amend a restitution order, to be conducted by two-way electronic audiovideo communication between the defendant and the courtroom in lieu of the defendant's physical presence in the courtroom, provided the county has agreed to make the necessary equipment available in the courtroom. (2) Nothing in this subdivision shall be interpreted to eliminate the authority of the court to issue an order requiring the defendant to be physically present in the courtroom in those cases where the court finds circumstances that require the physical presence of the defendant in the courtroom. (3) In lieu of the physical presence of the defendant's counsel at the institution with the defendant, the court and the Department of Corrections shall establish a confidential telephone and facsimile transmission line between the court and the institution for communication between the defendant's counsel in court and the defendant at the institution. In this case, counsel for the defendant shall not be required to be physically present at the institution during the hearing via electronic audiovideo communication. Nothing in this subdivision shall be construed to prohibit the physical presence of the defense counsel with the defendant at the state prison. (d) If an inmate who is not incarcerated in a state prison with two-way audiovideo communication capability or ward does not waive his or her right to attend a restitution hearing for the amendment of a restitution order, the State Board of Control shall determine if the cost of holding the hearing is justified. If the State Board of Control determines that the cost of holding the hearing is not justified, the amendment of the restitution order affecting that inmate or ward shall not be pursued at that time. (e) The State Board of Control shall prepare a preliminary report to the Legislature on the outcome of the pilot program no later than one year and 180 days after the effective date of the four-year pilot program. The board shall prepare a final report on the outcome of the pilot program no later than 2 years and 180 days after the conclusion of the four-year pilot program. (f) Nothing in this section shall be construed to prohibit an individual or district attorney's office from independently pursuing the imposition or amendment of a restitution order that may result in a hearing, regardless of whether the victim has received assistance pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code. SEC. 3. Section 1202.46 is added to the Penal Code, to read: 1202.46. Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4. SEC. 4. Item 5240-103-0001 is added to Section 2.00 of the Budget Act of 1999 (Chapter 50 of the Statutes of 1999), to read: 5240-103-0001--For local assistance, Department of Corrections .................................. 1,748,429 Schedule: (a) 31 Community Correctional program ....................... 1,748,429 Provisions: 1. The funds appropriated by this item shall be allocated to the City of Coalinga to provide equity with regard to community correctional facility contract issues. SEC. 5. Item 5240-493 is added to Section 2.00 of the Budget Act of 1999 (Chapter 50 of the Statutes of 1999), to read: 5240-493--Reappropriations, Department of Corrections. The balances of the appropriations provided in the following citations are reappropriated for the purposes, and subject to the limitations unless otherwise specified, provided for in the appropriations and shall be available for expenditure as cited below: 0001--General Fund Item 5240-301-0001, Budget Act of 1998 (2.3) 61.04.045--California Correctional Institution, Tehachapi: New Potable Water Source--Working drawings and construction (11) 61.08.020--California Institution for Men, Chino: PCE Contamination Cleanup--Construction (12) 61.08.024--California Institution for Men, Chino: Replace Locking Devices--Working drawings and construction (17) 61.09.427--California State Prison-Solano, Vacaville: Correctional Treatment Center, Phase II--Working drawings (18) 61.10.051--California Men's Colony, San Luis Obispo: Central Kitchen Replacement--Working drawings (27.1) 61.15.035--California Rehabilitation Center, Norco: Replace Men's Dormitories--Working drawings and construction (41) 61.28.428--North Kern State Prison, Delano: Correctional Treatment Center, Phase II--Working drawings 0746--1986 Prison Construction Fund Item 5240-303-0746, Budget Act of 1993 (1) 61.01.711-Statewide: Electrified Fence--Working drawings and construction, as reappropriated by Item 5240-491, Budget Act of 1996