BILL ANALYSIS �
AB 2397
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2397 (Frazier)
As Amended June 16, 2014
Majority vote
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|ASSEMBLY: |76-0 |(May 19, 2014) |SENATE: |32-0 |(June 26, |
| | | | | |2014) |
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Original Committee Reference: PUB. S.
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.
The Senate amendments make clarifying and technical non
substantive changes.
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
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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.
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, 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."
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided 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)Specified that a defendant who does not wish to be personally
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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)Stated 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)Defined "noncritical portions of the trial" for this section
only, as only those appearances which testimonial evidence is
not taken.
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 noncritical
portions of trial from being physically present in court to
electronic two-way audio video communication by allowing a court
to require the appearance to be conducted via the two-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
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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: 0004011