BILL NUMBER: AB 2217 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 25, 2010
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 18, 2010
An act to amend Sections 611 and 613 611,
613, and 1209 of the Code of Civil Procedure, and to amend
Sections 1122 166, 1122, and 1128 of
the Penal Code, relating to jurors.
LEGISLATIVE COUNSEL'S DIGEST
AB 2217, as amended, Fuentes. Jurors: electronic communications.
Existing
(1) Existing law requires the
court in a jury trial to admonish the jury that it is their duty not
to converse with, or permit themselves to be addressed by, any other
person on any subject of the trial. The court is required to provide
the admonishment in a civil proceeding when the jurors are permitted
to separate during the trial, and when the case is submitted to the
jury, and, in a criminal proceeding, after the jury has been sworn
and before the people's opening address, at each adjournment of the
court, and when the jurors are permitted by the court to separate
after the case is submitted to the jury. An officer having the jury
under his or her charge shall not permit any communication to be made
to them, or make any himself or herself, as specified.
This bill would expand those admonishments to include the
conduct of research or dissemination of information on any subject of
the trial. The bill would require the court, when admonishing
the jury against conversation , research, or dissemination of
information pursuant to these provisions, to clearly explain,
as part of the admonishment, that the prohibition on
conversation applies to all forms of electronic and
wireless communication. The bill would require the officer in charge
of a jury to prevent any form of electronic or wireless
communication.
(2) Existing law provides that certain acts or omissions in
respect to a court of justice, or proceedings therein, are civil
contempts of the authority of the court, including, among other
things, disobedience of any lawful judgment, order, or process of the
court. Existing law also specifies certain criminal contempts of
court, punishable as a misdemeanor, including, among other things,
resistance willfully offered by a person to the lawful order or
process of a court.
This bill would make the willful disobedience by a juror of a
court admonishment related to the prohibition on any form of
communication or research about the case, including all forms of
electronic or wireless communication or research, is punishable as
either a civil or criminal contempt of court pursuant to those
provisions. By expanding the scope of an existing crime, the bill
would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 611 of the Code of Civil Procedure is amended
to read:
611. If the jury are permitted to separate, either during the
trial or after the case is submitted to them, they shall be
admonished by the court that it is their duty not to conduct
research, disseminate information, or converse with, or permit
themselves to be addressed by, any other person on any subject of the
trial, and that it is their duty not to form or express an opinion
thereon until the case is finally submitted to them. The court shall
clearly explain, as part of the admonishment, that the prohibition on
research, dissemination of information, and conversation
applies to all forms of electronic and wireless communication.
SEC. 2. Section 613 of the Code of Civil Procedure is amended to
read:
613. When the case is finally submitted to the jury, they may
decide in court or retire for deliberation. If they retire, they must
be kept together in some convenient place, under charge of an
officer, until at least three-fourths of them agree upon a verdict or
are discharged by the court. Unless by order of the court, the
officer having them under his or her charge shall not permit any
communication to be made to them, including any form or
of electronic or wireless communication, or make
any himself or herself, except to ask them if they or three-fourths
of them are agreed upon a verdict. The officer shall not, before
their verdict is rendered, communicate to any person the state of
their deliberations, or the verdict agreed upon.
SEC. 3. Section 1209 of the Code of
Civil Procedure is amended to read:
1209. (a) The following acts or omissions in respect to a court
of justice, or proceedings therein, are contempts of the authority of
the court:
1.
(1) Disorderly, contemptuous, or insolent behavior
toward the judge while holding the court, tending to interrupt the
due course of a trial or other judicial proceeding ;
.
2.
(2) A breach of the peace, boisterous conduct, or
violent disturbance, tending to interrupt the due course of a trial
or other judicial proceeding ; .
3.
(3) Misbehavior in office, or other willful neglect or
violation of duty by an attorney, counsel, clerk, sheriff, coroner,
or other person, appointed or elected to perform a judicial or
ministerial service ; .
4.
(4) Abuse of the process or proceedings of the court,
or falsely pretending to act under authority of an order or process
of the court ; .
5.
(5) Disobedience of any lawful judgment, order, or
process of the court ; .
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
6.
(7) Rescuing any person or property in the custody of
an officer by virtue of an order or process of such
that court ; .
7.
(8) Unlawfully detaining a witness ,
or party to an action while going to, remaining at, or returning
from the court where the action is on the calendar for trial
; .
8.
(9) Any other unlawful interference with the process or
proceedings of a court ; .
9.
(10) Disobedience of a subpoena duly served, or
refusing to be sworn or answer as a witness ;
.
10.
(11) When summoned as a juror in a court, neglecting to
attend or serve as such a juror , or
improperly conversing with a party to an action ,
to be tried at such the court, or with
any other person, in relation to the merits of such
the action, or receiving a communication from a
party or other person in respect to it the
action , without immediately disclosing the same
communication to the court ;
.
11.
(12) Disobedience by an inferior tribunal ,
magistrate, or officer, or judicial officer of
the lawful judgment, order, or process of a superior court, or
proceeding in an action or special proceeding contrary to law, after
such the action or special proceeding
is removed from the jurisdiction of such the
inferior tribunal , magistrate, or
judicial officer.
(b) No A speech or publication
reflecting upon or concerning any a
court or any an officer thereof shall
not be treated or punished as a contempt of such
the court unless made in the immediate presence
of such the court while in session and
in such a manner as to actually interfere with its proceedings.
(c) Notwithstanding Section 1211 or any other provision
of law, if an order of contempt is made affecting an
attorney, his or her agent, investigator, or any person
acting under the attorney's direction, in the preparation and conduct
of any an action or proceeding, the
execution of any sentence shall be stayed pending the filing within
three judicial days of a petition for extraordinary relief testing
the lawfulness of the court's order, the violation of which is the
basis of the contempt, except for such conduct
as may be proscribed by subdivision (b) of Section
6068 of the Business and Professions Code, relating to an attorney's
duty to maintain respect due to the courts and judicial officers.
(d) Notwithstanding Section 1211 or any other provision
of law, if an order of contempt is made affecting a public
safety employee acting within the scope of employment for reason of
the employee's failure to comply with a duly issued subpoena or
subpoena duces tecum, the execution of any sentence shall be stayed
pending the filing within three judicial days of a petition for
extraordinary relief testing the lawfulness of the court's order, a
violation of which is the basis for the contempt.
As used in this subdivision, "public safety employee" includes any
peace officer, firefighter, paramedic, or any other employee of a
public law enforcement agency whose duty is either to maintain
official records or to analyze or present evidence for investigative
or prosecutorial purposes.
SEC. 4. Section 166 of the Penal Code
is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d),
every a person guilty of any
contempt of court, of any of the following kinds, of
the following contempts of court is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any a court of
justice, in the immediate view and presence of the court, and
directly tending to interrupt its proceedings or to impair the
respect due to its authority.
(2) Behavior as specified in paragraph (1)
that is committed in the presence of any
a referee, while actually engaged in any
a trial or hearing, pursuant to the order of
any a court, or in the presence of
any a jury while actually sitting for
the trial of a cause, or upon any an
inquest or other proceedings proceeding
authorized by law.
(3) Any A breach of the peace,
noise, or other disturbance directly tending to interrupt the
proceedings of any the court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by
any a court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of any a court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(6)
(7) The contumacious and unlawful refusal of
any a person to be sworn as a witness or, when
so sworn, the like refusal to answer any a
material question.
(7)
(8) The publication of a false or grossly inaccurate
report of the proceedings of any a
court.
(8)
(9) Presenting to any a
court having power to pass sentence upon any
a prisoner under conviction, or to any
a member of the court, any an
affidavit or , testimony ,
or representation of any kind, verbal or written, in aggravation or
mitigation of the punishment to be imposed upon the prisoner, except
as provided in this code.
(b) (1) Any A person who is guilty
of contempt of court under paragraph (4) of subdivision (a) by
willfully contacting a victim by telephone or mail, or directly, and
who has been previously convicted of a violation of Section 646.9
shall be punished by imprisonment in a county jail for not more than
one year, by a fine of five thousand dollars ($5,000), or by both
that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a),
any a willful and knowing violation of
any a protective order or stay-away court order
issued pursuant to Section 136.2, in a pending criminal proceeding
involving domestic violence, as defined in Section 13700, or issued
as a condition of probation after a conviction in a criminal
proceeding involving domestic violence, as defined in Section 13700,
or elder or dependent adult abuse, as defined in Section 368, or that
is an order described in paragraph (3), shall constitute contempt of
court, a misdemeanor, punishable by imprisonment in a county jail
for not more than one year, by a fine of not more than one thousand
dollars ($1,000), or by both that imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) Any An order issued pursuant to
Section 6320 or 6389 of the Family Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of
any an order described in paragraph (1)
occurring within seven years of a prior conviction for a violation of
any of those orders and involving an act of violence or "a credible
threat" of violence, as provided in subdivisions (c) and (d) of
Section 139, is punishable by imprisonment in a county jail not to
exceed one year, or in the state prison for 16 months or two or three
years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under the
provisions of subdivision (g) of Section 12021.
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097 of the Penal Code.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For any an order to pay a fine,
make payments to a battered women's shelter, or pay restitution as a
condition of probation under this subdivision or subdivision (c), the
court shall make a determination of the defendant's ability to pay.
In no event shall any an order to make
payments to a battered women's shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support.
(4) If the injury to a married person is caused in whole ,
or in part , by the criminal acts of his or her
spouse in violation of subdivision (c), the community property
may shall not be used to discharge the
liability of the offending spouse for restitution to the injured
spouse required by Section 1203.04, as operative on or before August
2, 1995, or Section 1202.4, or to a shelter for costs with regard to
the injured spouse and dependents required by this subdivision, until
all separate property of the offending spouse is exhausted.
(5) Any A person violating
any an order described in subdivision (c) may be
punished for any substantive offenses described under Section 136.1
or 646.9. No A finding of contempt
shall not be a bar to prosecution for a violation of
Section 136.1 or 646.9. However, any a
person held in contempt for a violation of subdivision (c) shall be
entitled to credit for any punishment imposed as a result of that
violation against any sentence imposed upon conviction of an offense
described in Section 136.1 or 646.9. Any A
conviction or acquittal for any a
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 3. SEC. 5. Section 1122 of the
Penal Code is amended to read:
1122. (a) After the jury has been sworn and before the people's
opening address, the court shall instruct the jury generally
concerning its basic functions, duties, and conduct. The instructions
shall include, among other matters, all of the following
admonitions:
(1) That the jurors shall not converse among themselves, or with
anyone else, conduct research, or disseminate information
on any subject connected with the trial. The court shall clearly
explain, as part of the admonishment, that the prohibition on
conversation research, and dissemination of information
applies to all forms of electronic and wireless communication.
(2) That they shall not read or listen to any accounts or
discussions of the case reported by newspapers or other news media.
(3) That they shall not visit or view the premises or place where
the offense or offenses charged were allegedly committed or any other
premises or place involved in the case.
(4) That prior to, and within 90 days of, discharge, they shall
not request, accept, agree to accept, or discuss with any person
receiving or accepting, any payment or benefit in consideration for
supplying any information concerning the trial.
(5) That they shall promptly report to the court any incident
within their knowledge involving an attempt by any person to
improperly influence any member of the jury.
(b) The jury shall also, at each adjournment of the court before
the submission of the cause to the jury, whether permitted to
separate or kept in charge of officers, be admonished by the court
that it is their duty not to conduct research, disseminate
information, or converse among themselves, or with anyone else,
on any subject connected with the trial, or to form or express any
opinion thereon about the case until
the cause is finally submitted to them. The court shall clearly
explain, as part of the admonishment, that the prohibition on
research, dissemination of information, and conversation
applies to all forms of electronic and wireless communication.
SEC. 4. SEC. 6. Section 1128 of the
Penal Code is amended to read:
1128. After hearing the charge, the jury may either decide in
court or may retire for deliberation. If they do not agree without
retiring for deliberation, an officer shall be sworn to keep them
together for deliberation in some private and convenient place, and,
during the deliberation, not to permit any person to speak to or
communicate with them, including any form or
of electronic or wireless communication, nor to do so himself
or herself, unless by order of the court, or to ask them whether they
have agreed upon a verdict, and to return them into court when they
have so agreed, or when ordered by the court. The court shall fix the
time and place for deliberation. The jurors shall not deliberate on
the case except under those circumstances. If the jurors are
permitted by the court to separate, the court shall properly admonish
them as provided in subdivision (b) of Section 1122. If the jury is
composed of both men and women, and the jurors are not permitted by
the court to separate, in the event that it becomes necessary to
retire for the night, the women shall be kept in a room or rooms
separate and apart from the men.
SEC. 7. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.