BILL ANALYSIS �
AB 2397
Page 1
Date of Hearing: May 6, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2397 (Frazier) - As Introduced: February 21, 2014
As Proposed to be Amended in Committee
SUMMARY : Expands the appearances that can be made via two-way
video conferences between a defendant housed in a county jail
and a courtroom to include specified non-critical trial
appearances, if the defendant and defense counsel consent to the
defendant's physical absence from court. Specifically, this
bill :
1)Provides that courts may 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, 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.
2)Specifies that 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 waiver to the court, which the court may grant in its
discretion.
3)States that 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.
4)Defines "noncritical portions of the trial" for this section
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only, as only those appearances which testimonial evidence is
not taken.
EXISTING LAW :
1)Specifies in all cases in which the accused is charged with a
misdemeanor only, he or she may appear by counsel only, with
specified exceptions. If the accused agrees, the initial
court appearance, arraignment, and plea may be by video, as
specified. (Pen. Code, � 977 subd. (a)(1).)
a) States that if the accused is charged with a misdemeanor
offense involving domestic violence 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. (Pen. Code, � 977 subd. (a)(2).)
b) 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. (Pen. Code, � 977 subd. (a)(3).)
2)Provides 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, as provided. (Pen.
Code, � 977 subd. (b)(1).)
3)Specifies 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: "The undersigned defendant, having been advised of his
or her right to be present at all stages of the proceedings,
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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." (Pen. Code, � 977 subd.
(b)(2).)
4)Provides 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. (Pen.
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Code, � 977 subd. (c).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2397 would
change the presumption of appearance of a defendant for
non-critical portions of trial from being physically present
in court to electronic 2-way audio video communication by
allowing a court to require the appearance to be conducted via
the 2-way communication system and requiring a defendant who
wishes to be physically present to submit written request to
the court, to be granted at the court's discretion.
"Additionally, AB 2397 would also allow for the defendant's
attorney to remain in court for the appearance so long as the
technology present that allows for private communication
between the defendant and counsel. Any private communication
shall remain confidential and privileged pursuant to Section
952 of the Evidence Code.
"This bill in no way expands or limits the right of a
defendant to be personally present with his or her counsel at
any proceeding, as required by the California Constitution.
"This change will result in immediate cost savings to the
courts and counties that must provide transportation and
security for defendants.
"Often, the defendant is housed in a facility hours away from
the court proceeding, necessitating costly processing,
transportation arrangements, and staffing to coordinate the
transport of the defendant to court.
"With the local court budgets being reduced, more
cost-effective practices should be put into place that do not
interfere with a defendant's right to be present and
represented by counsel."
2)Expansion of Appearances by Video : Under current law, a
defendant may appear by video conferencing at the first
appearance of the case, instruction and arraignment, or at the
time of a plea at arraignment. For the most part, a defendant
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waives instruction and arraignment and enters a plea of not
guilty. Appearance by video creates a number of problems for
a defense attorney to 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.
3)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.
4)Waiver of Personal Appearance : A defendant may waive his or
her appearance in court if he or she executes a written waiver
of appearance. The waiver must be approved by the counsel of
record and filed with the court. However, the court may order
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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."
5)Argument in Support : According to the California State
Sheriffs' Association , "We are pleased to sponsor Assembly
Bill 2397, which would allow the court to 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 via 2-way electronic audio-video
communication in lieu of physically appearing in the court
room, unless the defendant wishes to physically appear in
court. AB 2397 would also exempt private counsel from the
requirement to be physically present with the defendant for
these noncritical portions of the trial if the audio-video
conferencing system or other technology used also allows for
private communication between the attorney and client both
prior to and during the noncritical portion of the trial...In
many cases, defendants are housed in facilities far from the
local court, necessitating costly processing, transportation
arrangements, and staffing to coordinate the transport for
appearances that last only a few seconds. With local court
budgets being reduced, more cost-effective practices should be
put into place that do not interfere with a defendant's right
to be present and represented by counsel. Two-way audio-video
communication will result in maximized cost savings, enhanced
safety, and greater flexibility while retaining all rights
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currently given to defendants under the United States and
California Constitutions."
6)Argument in Opposition: According to California Attorneys for
Criminal Justice , "[t]his bill strikes from existing law the
requirement that a defendant's attorney be present with the
defendant in any county exceeding 4,000,000 persons, thus
eroding a defendant's right to effective assistance of
counsel. Current law allows for a defendant to request
physical appearance in a case, that is, if he chooses to waive
his right to be present for proceedings?
"The California Constitution, Article 1, Section 15, holds
that a 'defendant in a criminal cause has the right?to be
personally present with counsel.' In addition, leaving vague
the definition of what constitutes a 'non-critical' portion of
trial, as this bill does?invites constitutional challenges
that a defendant's federal rights to be physically present
during all 'critical' stages of his criminal proceeding under
the Fifth and Fourteenth Amendments to the Constitution have
been violated by the?teleconference procedure. (See Kentucky
v. Stincer (1987) 482 U.S. 730, 745.)"
7)Prior Legislation :
a) AB 2102 (Lieu), of the 2009-2010 Legislative Session,
specified 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. AB 2102 was passed by the Assembly and was
never heard in Senate Public Safety Committee.
b) 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.
c) 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
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technical corrections to conform 2006 legislative
amendments to provisions relating to vehicular
manslaughter.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Sheriff
Butte County Sheriff
California State Sheriffs' Association
Glenn County Sheriff
Kern County Sheriff
Kings County Sheriff
Napa County Sheriff
Orange County Sheriff
Peace Officers Research Association of California
San Bernardino County Sheriff
San Mateo Sheriff
Santa Cruz County Sheriff
Shasta County Sheriff
Sutter County Sheriff
Tehama County Sheriff
Yolo County Sheriff
Opposition
California Attorneys for Criminal Justice
California Federation of Interpreters
Legal Services for Prisoners with Children
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744