BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 100 (Cohn)
As Amended April 19, 2005
Hearing date: June 7, 2005
Penal Code
SH:br
COURT APPEARANCE OF DEFENDANTS
AUDIOVIDIO COMMUNICATION
HISTORY
Source: Author
Prior Legislation: AB 99 (Cox) - Ch. 293, Stats. 2004
SB 1126 (Costa) - Ch. 888, Stats. 1999
SB 840 (Beverly) - Ch. 367, Stats. 1995
AB 2853 (Cortese) - Ch.1382, Stats. 1984
AB 177 (Cortese) - Ch. 197, Stats. 1983
Support: California District Attorneys Association; California
Correctional Supervisors Organization; San Diego County
Sheriff; Los Angeles District Attorney's Office;
California Judges Association (if amended)
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 71 - Noes 0
KEY ISSUE
SHOULD A LOCAL LAW ENFORCEMENT AGENCY HAVING JURISDICTION OVER A
DEFENDANT CURRENTLY INCARCERATED IN A CITY OR COUNTY JAIL BE
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ALLOWED TO ARRANGE - WITH THE CONSENT OF THE DEFENDANT AND THE
COURT IN WHICH THE DEFENDANT IS TO APPEAR - FOR SPECIFIED COURT
APPEARANCES OF THE DEFENDANT TO BE CONDUCTED BY TWO-WAY
ELECTRONIC AUDIOVIDEO COMMUNICATION IN LIEU OF THE PHYSICAL
PRESENCE OF THE DEFENDANT IN THE COURTROOM, AS SPECIFIED?
PURPOSE
The purpose of this bill is to allow a local law enforcement
agency having jurisdiction over a defendant currently
incarcerated in a city or county jail to arrange - with the
consent of the defendant and the court in which the defendant is
to appear - for specified court appearances of the defendant to
be conducted by two-way electronic audiovideo communication in
lieu of the physical presence of the defendant in the courtroom,
as specified.
Existing law provides that:
In all cases in which the accused is charged with a
misdemeanor only, he or she may appear by counsel only, except
as provided regarding domestic violence cases and protective
orders. If the accused agrees, the initial court appearance,
arraignment, and plea may be by video, as provided. (Penal
Code 977(a).)
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 specified written
waiver of his or her right to be personally present, as
provided in this section. If the accused agrees, the initial
court appearance, arraignment, and plea may be by video, as
provided in this section. (Penal Code 977 (b) and (c).)
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Notwithstanding subdivision (c) regarding the court's
authority to permit initial appearances and arraignments by
two-way audiovisual communication, if the defendant is
represented by counsel, the attorney shall be present with the
defendant in any county exceeding 4,000,000 persons in
population. (Penal Code 977(d).)
Existing law provides that that in any case in which the
defendant is charged with a misdemeanor or a felony and
currently incarcerated in the state prison, the Department of
Corrections may arrange without the defendant's consent for all
court appearances in superior court, except for the preliminary
hearing, trial, judgment and sentencing, and motions to
suppress, 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, as
specified. (Penal Code 977.2.)
This bill does the following:
Provides that in any case in which the defendant is charged
with a misdemeanor or a felony and is currently incarcerated
in a city or county jail, the law enforcement agency having
jurisdiction over the defendant may, with the consent of the
defendant and the court in which the defendant will be
appearing, arrange for all court appearances in municipal or
superior court, except for the preliminary hearing, trial,
judgment and sentencing, and motions to suppress, 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.
Permits 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.
Requires that, for those court appearances that the law
enforcement agency having jurisdiction over the defendant
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determines to conduct by two-way electronic audiovideo
communication, the law enforcement agency shall arrange for
the two-way electronic audiovideo communication between the
municipal or superior court and the city or county jail. The
law enforcement agency shall ensure that properly maintained
equipment and adequately trained staff are available at the
county jail and that appropriately trained court staff are
available in the courtroom.
Provides that 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; if the attorney is not present with the
defendant, the attorney shall be present in court during the
hearing.
Provides that in lieu of the physical presence of the
defendant's counsel at the institution with the defendant, the
court and the law enforcement agency 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 any court appearance conducted via electronic
audiovideo communication.
States that nothing in this section shall be construed to
prohibit the physical presence of the defense counsel with the
defendant at a city or county jail.
COMMENTS
1. Need for This Bill
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The author's office indicates that this bill "seeks to reduce
court backlogs, reduce inmate transportation costs, increase
public safety, better utilize court holding facilities, by
expanding the use the video teleconferencing between jail and
court facilities to more jurisdictions around the state."
2. Possible Logistical Issues
This bill allows an in-custody, criminal defendant's first court
appearance to be conducted via audiovideo transmission between
the courtroom and the jail where the inmate is housed - with the
consent of the defendant. In many jurisdictions, a first
appearance includes entry of a plea, appointment of counsel if
the defendant establishes that he or she is indigent, and a bail
hearing. In most cases, public defenders and private-appointed
counsel represent numerous defendants on a single arraignment
calendar. Some defendants are in custody; some defendants may
be out of custody. Under this bill, the attorney faced with
that situation would be required to be present in the courtroom
with the out-of-custody client. The attorney would nevertheless
need to conduct an initial interview with his or her several
in-custody clients to obtain information critical to appointment
of counsel issues and setting of bail. These are very personal
matters involving whether the client is working, what salary the
client earns, whether he or she owns a home, what family members
of the client live in the area, etc. Because the client has, in
most cases, never met the attorney before, a vital component of
the attorney's job is to establish a sense of trust and rapport
with the new client when asking these sensitive questions. This
bill could arguably create some logistical problems for defense
counsel in some circumstances.
This bill would apply to arraignments and other evidentiary and
procedural motions, such as motions to compel discovery, change
venue, and dismiss informations.
3. Existing law - Penal Code Section 977
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As noted in the "Purpose" section, above, existing law provides
a process for a defendant to waive a personal appearance in
specified portions of his or her criminal case (Penal Code
977). Section 977(c) specifically provides, in part, that:
(c) The court may permit the initial court
appearance and arraignment in municipal or
superior court 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.
This bill adds similar language to Penal Code Section 977.2,
which currently applies to state prison inmates.
GIVEN EXISTING PENAL CODE SECTION 977, IS THIS BILL NECESSARY?
4. Position of the California Judges Association (support if
amended)
The California Judges Association letter "in support if amended"
includes the following:
CJA supports the concept of the bill, as it will
aid in the efficiency of court operations. CJA
asks that the bill be amended to include a
provision that the sheriff has financial
responsibility for any costs association with the
two-way electronic audiovideo communication.
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5. Support for This Bill
The San Diego County Sheriff's letter in support of this bill
includes the following:
The San Diego County Sheriff's Department has used
video teleconferencing between jail and court
facilities for over a decade. Presently, we process
over 1,400 court appearances per month using this
technology. The use of video teleconferencing has
yielded many benefits including reduced
transportation costs, increased safety, and better
utilization of court holding facilities. Passage of
AB 100 would undoubtedly expand these benefits to
more jurisdictions around the state.
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6. Opposition to This Bill
The California Attorneys for Criminal Justice opposition to this
bill includes the following:
As a practical matter, when defendants are present
in court for arraignment and pre-trial conferences
nearly 90 percent of these cases can be resolved.
Communications by video may suffice to apprise the
defendant of the charges, but video does not
permit the defendant and his attorney to discuss
the case at that time.
Moreover, the clients do not trust most video
attorney-client communications and the equipment
limits the amount of interviews that can be
conducted simultaneously.
Whatever financial benefit is derived by not
transporting a defendant to court is lost when an
attorney is prevented by this same process from
personally talking to the defendants. Video
communications require more court time, more
appearances, and more clerk inputs than having
your client next to you when a whispered word of
advice during a personal discussion can resolve
the case at once.
7. History of the Issue
In 1983, AB 177 (Cortese) authorized a two-year pilot project
in specified counties for the use of two-way television to be
used in arraignments, allowed a defendant to be accompanied by
counsel during such an arraignment, and required annual reports
to the Legislature on the project. That bill also specifically
prohibited acceptance of a plea of guilty or of no contest from
a defendant not physically in the courtroom.
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In 1984, AB 2853 (Cortese) extended the authorization to a
four-year pilot project and made additional specifications and
requirements.
Penal Code Section 977.2 was enacted in 1995 by SB 840
(Beverly) which established a 3-year pilot project at five
institutions that would permit the initial court appearance and
arraignment in municipal or superior court to be conducted by
two-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.
In 1999, SB 1126 (Costa) deleted the pilot project aspect of
Penal Code Section 977.2 and removed the reporting requirement,
the limit on the number of institutions included, and the sunset
clause on that provision.
In 2004, AB 99 (Cox) authorized the Department of Corrections,
in all cases in which the defendant is charged with a
misdemeanor or a felony and is currently incarcerated in the
state prison, to arrange for all court appearances, except for
preliminary hearings, trials, judgment and sentencing, and
motions to suppress, 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, as specified.
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