BILL ANALYSIS
AB 2102
Page 1
Date of Hearing: May 4, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2102 (Lieu) - As Amended: April 19, 2010
SUMMARY : Specifies that a defendant may appear in court by
video conferencing in specified cases when the defendant
consents so long as the matter does not involve the taking of
testimony. Specifically, this bill :
1)Permits a defendant to elect to appear in court by video
conferencing technology at any court appearance not involving
testimonial evidence.
2)States that the Legislature finds and declares the following:
a) Video appearances increase courtroom efficiencies
resulting in lower costs, fewer delays associated with
transporting inmates and staffing courtrooms, and safer
conditions for defendants by utilizing technology;
b) Advances in videoconferencing technology have created
cost-effective alternatives to in-person proceedings with
secure privacy protection;
c) Video appearances enhance peace officer and public
safety and reduce risks associated with transporting
inmates between the jail and the courtroom; and,
d) Appearing via video is often a preferred option for
defendants.
EXISTING LAW :
1)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 Section 977(a)(1).]
AB 2102
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2)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 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 Section 977(c).]
3)If the accused is charged with a misdemeanor offense involving
domestic violence, as defined, or a misdemeanor violation 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 Section 977(a)(2).]
4)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
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offenses. [Penal Code Section 977(a)(3).]
5)States 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. [Penal Code Section 977(b)(1).]
6)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 Section 977(b)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "[v]ideo
appearances are an interactive way for defendants to appear in
front of a judge while not being physically present in the
courtroom. Video appearances have many benefits for counties
through cost savings, for the courts with increased efficiency
and courtroom safety and for the defendants by reduced
security risk during transportation.
"With the advent of video technology allowing families and
friends to communicate over the Internet, the benefits for
California can be realized through expanding the use of video
appearances. AB 2102 will provide for more proceedings during
a criminal trial where a defendant could be present in the
courtroom via video."
2)Background : According to the background provided by the
author, "[c]urrent law states that the initial court
appearance, arraignment and plea may be done by video under
certain circumstances, if the defendant elects this
alternative. However, the law limits the eligible proceedings
for video appearances to just those three proceedings for
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specific misdemeanor cases. This lack of flexibility for
proceedings prevents the real cost savings and courtroom
safety and efficiency realized by video technology. AB 2102
is a vehicle to expand the use of video technology in court
proceedings.
"There are many instances throughout criminal proceedings,
where the defendant must be transported to and from the county
jail facility. Yet, many times the defendant does not even
appear in front of the judge. These inmates often have to
wake up very early, lose their sleeping placement in a cell,
eat cold meals and wait in the holding cell all day.
Transporting these inmates back and forth not only cost the
sheriff department's thousands of dollars, but also puts the
defendant in severe risk of danger. As experienced by many
sheriff departments, it is during transport where severe
injuries and deaths have occurred to inmates following attacks
by other inmates. For these reasons, many defendants have
generally preferred to appear by video.
"Some counties throughout the nation have used video
appearances with great success. For example, Clark County in
the State of Washington has used videoconferencing as an
alternative to transporting an inmate to and from the
courtroom. Through this technology, Clark County has saved
thousands while increasing courtroom and jail efficiencies.
Although only 31 percent of the county's district court
arraignments were done by video in 2008, the county saved
$43,617 in costs. California could also see this cost savings
by reducing the expenses associated with providing security
and supervision for inmates during transport.
"Video appearances have other benefits in addition to fiscal
savings. Video appearances also increase courtroom efficiency
through cutting the delay caused by waiting for inmates to be
transported to the courtroom. With fewer delays, the court is
more efficient and can better manage its docket. Video
appearances also reduce the security risks of transporting
inmates through many California's courtrooms where inmates are
transported in the open public and near adverse witnesses.
"AB 2102 will help California realize the benefits of video
technology by expanding on the type of appearances."
3)Expansion of Appearances by Video : Under current law, a
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defendant may appear by video conferencing at the first
appearance of the case, instruction and arraignment, or at the
time of a plea. For the most part, a defendant waives
instruction and arraignment and enters a plea of not guilty.
Appearance by video creates a number of problems for a defense
attorney in effectively represent his or her client. A
defense attorney is not afforded an opportunity to consult
with his or her client in person prior to appearing on the
client's behalf. Any consultation would be in public and all
confidentiality would be compromised. Arguably, resources are
wasted by video conference appearances as attorneys can often
resolve matters quickly once they have an opportunity to
consult with their clients in private. The vast majority of
criminal defendants meet their attorney on the first
appearance. Generally, arraignments must be conducted within
72 hours of arrest. Public defenders are not assigned to a
case until the arraignment; in many counties, the arraignment
is handled by an arraignment deputy and assigned to counsel at
a later date. By not permitting a private consultation at the
first appearance of a case, quick resolutions of matters are
impossible and further unnecessary court appearances become
necessary. Fortunately, this bill maintains an existing
"opt-in" provision so that defendants must appear in court
unless they specifically choose not to attend in writing.
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.
4)Opt-In : This bill provides a defendant the right to appear in
court if he or she chooses to do so. The defendant must
specifically opt-in to the video conference appearance in
writing. The following language is maintained in Penal Code
Section 977(c): "[i]f 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." Providing an
option to opt-in to the video conferencing rather than
requiring defendants to opt-out of an actual court appearance
better protects a defendant's right to counsel and due
process.
5)Waiver of Personal Appearance : A defendant may waive his or
her appearance in court if he or she executes a written waiver
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of appearance. The waiver must be approved by the counsel of
record and filed with the court. However, the court may order
the defendant present in court when required. The waiver
should follow the basic format below.
"Waiver of Defendant's Personal Presence. The undersigned
defendant, having been advised of his 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."
6)Argument in Support : According to the California State
Sheriffs' Association , "[c]urrent law states that the initial
court appearance, arraignment and plea may be done by video
under certain circumstances, if the defendant elects this
alternative. However, the law limits the eligible proceedings
for video appearances to these proceedings for specific
misdemeanor cases. This lack of flexibility for proceedings,
particularly where the defendants and parties involved would
otherwise elect to use video conferencing, prevents the real
cost savings and courtroom safety and efficiencies realized by
video technology.
"AB 2102 would expand the use of video appearances by
authorizing, only if the defendant agrees, any court
appearance not involving testimonial evidence including, but
not limited to, the initial court appearance, arraignment, or
plea to be by video.
"New advances in videoconferencing technology and equipment have
enabled a more cost-effective and comparable alternative to
in-person proceedings while maintaining secure privacy
protection for the user. Proceedings by video offer increased
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safety, comfort, and security of inmates in many cases as
transportation times and length of holding for a hearing are
significantly minimized.
"Video arraignment also increases courtroom efficiencies
resulting in lower costs and fewer delays associated with
transporting inmates and staffing courtrooms. As defendants
are not being transported to and from proceedings, and
sometimes multiple appearances, peace officer safety is
increased as well as the public safety risks posed by
transporting inmates between the jail and the courtroom.
Further, as video arraignment expedites proceedings and the
number of cases that can be heard, jail release efficiencies
can be realized.
"Several other states utilize video technology to conduct a wide
array of hearings including Washington, Missouri, Georgia,
Oregon, and Arizona. Their experiences show that video
appearances not only provide significant cost savings when
usage is maximized, but there are significant advantages in
the levels of safety and comfort for defendants that cannot be
quantified as well as the increased security for the public
and the custody officer."
7)Prior Legislation :
a) AB 2174 (Villines), Chapter 744, Statutes of 2006,
provided that the court may order a person charged with a
misdemeanor driving under the influence offense to be
personally present at arraignment, plea, or sentencing.
b) AB 678 (Gaines), Chapter 747, Statues of 2007, made a
series of technical conforming amendments to numerous code
sections related to penalty enhancements, victim
compensation, license suspension, license revocation,
insurance rates, waiver of personal appearance through
counsel, chemical test refusal, commercial licensing, prior
offense enhancements, and vehicle impoundment. AB 678 made
technical corrections to conform 2006 legislative
amendments to provisions relating to vehicular
manslaughter.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 2102
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California District Attorneys Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Chief Probation Officers of California
County of Los Angeles
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744