BILL ANALYSIS �
AB 2397
Page 1
ASSEMBLY THIRD READING
AB 2397 (Frazier)
As Amended May 12, 2014
Majority vote
PUBLIC SAFETY 7-0
--------------------------------
|Ayes:|Ammiano, Melendez, |
| |Jones-Sawyer, Quirk, |
| |Skinner, Stone, Waldron |
| | |
--------------------------------
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 noncritical 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 the 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.
AB 2397
Page 2
4)Defines "noncritical portions of the trial" for this section
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.
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.
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.
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.
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
AB 2397
Page 3
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."
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : 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
AB 2397
Page 4
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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
FN: 0003423