Amended in Senate June 16, 2014

Amended in Assembly May 12, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2397

Introduced by Assembly Member Frazier

February 21, 2014

An act to amend Section 977 of the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 2397, as amended, Frazier. Criminal procedure: defendant’s appearance by video.

Existing law generally requires a defendant in a criminal trial in which a felony is charged to 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. Existing law requires the accused to be personally present at all other proceedings unless he or she executes a written waiver of his or her right to be personally present. Existing law authorizes a court to permit the initial court appearance and arraignment of a defendant 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 2-way electronic audiovideo communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom. Existing law requires the defendant to execute a written waiver if the defendant decides not to exercise the right to be physically present in the courtroom to make his or her plea.

Existing law requires the attorney of a defendant so held to be present in court during the hearing for an initial court appearance and arraignment if the attorney is not present with the defendant. Existing law, notwithstanding this provision, requires the attorney to be present with the defendant in any county exceeding 4,000,000 persons in population.

This bill would delete the requirement that the attorney be present in any county exceeding 4,000,000 persons in population. begin insert The bill would authorize a defendant who does not wish to be personally present for noncritical portions of the trial when no testimonial evidence is taken to submit an oral waiver in open court prior to the proceeding, or submit a written request to the court and would allow the court to grant the request in its discretion. end insert The bill would allow a court begin insert , when a defendant has waived the right to be personally present, end insert to require the appearance of a defendant held in any state, county, or local facility within the county on felony or misdemeanor charges to be conducted by 2-way electronic audiovideo communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom for noncritical portions of the trial. begin delete The bill would authorize a defendant who does not wish to be personally present for noncritical portions of trial, as defined, to submit an oral waiver in open court prior to the proceeding, or submit a written request to the court and would allow the court to grant the request in its discretion. The bill would, if the defendant is represented by counsel, provide that the attorney shall not be required end delete begin insert If the defendant is represented by counsel, the bill would not require the attorney end insert 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. The bill would state 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 as required by the California Constitution.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 977 of the Penal Code is amended to
read:

977.  

(a) (1) In all cases in which the accused is charged with
a misdemeanor only, he or she may appear by counsel only, except
as provided in paragraphs (2) and (3). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video,
as provided by subdivision (c).

(2) If the accused is charged with a misdemeanor offense
involving domestic violence, as defined in Section 6211 of the
Family Code, or a misdemeanor violation of Section 273.6, 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.

(3) 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 any of the following:

(A) Subdivision (b) of Section 191.5.

(B) Section 23103 as specified in Section 23103.5 of the Vehicle
Code.

(C) Section 23152 of the Vehicle Code.

(D) Section 23153 of the Vehicle Code.

(b) (1) Except as provided in subdivision (c), in all cases in
which a felony is charged, the accused shall be personally 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, as provided by paragraph (2). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video,
as provided by subdivision (c).

(2) 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. The waiver shall be
substantially in the following form:

“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.”

begin insert end insert

(c) (1) 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.

(2) (A)  begin insert A defendant who does not wish to be personally present
for noncritical portions of the trial when no testimonial evidence
is taken 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. end insert The court may begin insert , when a
defendant has waived the right to be personally present, end insert require
a defendant held in any state, county, or local facility within the
county on felony or misdemeanor charges to be present for
noncritical portions of the trial begin insert when no testimonial evidence is
taken end insert , including, but not limited to, confirmation of the preliminary
hearing, status conferences, trial readiness conferences, discovery
motions, receipt of records, 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. begin delete 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. end delete 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 trial. Any private communication shall be confidential
and privileged pursuant to Section 952 of the Evidence Code.

(B) This paragraph does not expand or limit the right of a
defendant to be personally present with his or her counsel at a
particular proceeding as required by Section 15 of Article 1 of the
California Constitution.

begin delete

(C) For purposes of this subdivision, noncritical portions of the
trial shall only include appearances in which testimonial evidence
is not taken.

end delete