Bill Text: CA AB1214 | 2023-2024 | Regular Session | Amended
Bill Title: Courts: remote technology.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed) 2023-07-06 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB1214 Detail]
Download: California-2023-AB1214-Amended.html
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Amended
IN
Senate
June 29, 2023 |
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Amended
IN
Senate
June 13, 2023 |
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Amended
IN
Assembly
April 04, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 1214
| Introduced by Assembly Member Maienschein |
February 16, 2023 |
An act to add Section 71651.1 to the Government Code, and to amend and repeal Section 977 of, and to add Section 977.3 to, Sections 977.3 and 977.4 to, the Penal Code, relating to courts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1214, as amended, Maienschein.
Courts: remote technology.
Existing law allows the use of technology by trial courts for attorneys, parties, and witnesses to appear remotely for specified criminal court proceedings, subject to specified limitations, until January 1, 2024. Existing law, beginning January 1, 2024, allows a defendant in a case charged with only a misdemeanor to appear by counsel, except as specified, and if the defendant agrees, to conduct the initial court appearance, arraignment, and plea by video, as specified. Existing law requires an individual accused of a felony to be personally present at all proceedings unless with leave of the court, the individual executes a written waiver of their right to be personally present, or as otherwise specified. Existing law, beginning January 1, 2024, allows a defendant in a felony matter, if the defendant agrees, to conduct the initial court appearance, arraignment, and plea by video, as
specified.
This bill would, until January 1, 2026, instead allow, if the defendant agrees and the court consents, a defendant in a misdemeanor matter to appear through remote technology, as defined, for any noncritical portion of a proceeding when no sworn testimony is taken. The bill would additionally allow a defendant in a felony matter to participate, upon their request and with leave of the court, in the initial court appearance, arraignment, entry of plea, bail hearings, resentencing hearings, and motion hearings and conferences when no sworn testimony is taken, through remote technology, as specified. The bill would specify that these provisions do not authorize the use of remote technology for a jury or court trial. The bill would require the waiver of a defendant’s personal appearance in a felony matter to include that the defendant knowingly, intelligently, and voluntarily waives the right to be present at the hearing or other proceeding. The bill would
authorize a court to permit a witness in misdemeanor or felony proceedings to testify through the use of remote technology, except as specified. The bill would authorize the defendant to consent to appear remotely for noncritical portions of criminal proceedings when no sworn testimony is taken. The bill would require defense counsel, the prosecution, and the judicial officer to be present in the courtroom if the defendant if is physically present in the courtroom.
This bill would require the Judicial Council to adopt minimum standards for the courtroom technology necessary to permit remote participation in criminal proceedings and would authorize the Judicial Council to adopt rules and standards necessary to implement these provisions. The bill would require a superior court
using remote technology for criminal proceedings to post on its internet website a means for various persons to provide feedback regarding the use of remote technology and would require the superior court to send feedback to the Judicial Council on a quarterly basis. The bill would require the Judicial Council, commencing July 1, 2024, to compile the written feedback and provide a copy to the chairs of the Senate and Assembly Committees on Judiciary and Senate and Assembly Committees on Public Safety, semiannually.
Existing law prohibits, until January 1, 2024, a trial court from retaliating against an official court reporter or official court reporter pro tempore for notifying a judicial officer that technology or audibility issues are interfering with the creation of the record for a remote proceeding pursuant to specified provisions.
This bill would generally
prohibit a court from retaliating, or threatening to retaliate, against an official court reporter or official court reporter pro tempore for notifying a judicial officer that technology or audibility issues are interfering with the creation of the record for a criminal proceeding that includes participation through remote technology.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
A trial court shall not retaliate or threaten to retaliate against an official reporter or official reporter pro tempore who notifies the judicial officer that technology or audibility issues are impeding the creation of the verbatim records of a proceeding that includes participation through remote technology.
SEC. 2.SECTION 1.
Section 977 of the Penal Code, as added by Section 13 of Chapter 57 of the Statutes of 2022, is amended to read:977.
(a) (1) In all cases in which the accused is charged with a misdemeanor only, they may appear by counsel only, except as provided in paragraphs (2) and (3).(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.
(4) Notwithstanding the above, if the accused agrees and the court
consents, the accused may appear through remote technology for any noncritical portion of a criminal proceeding when no sworn testimony is taken as provided by subdivision (c). This paragraph does not permit the use of remote technology for a jury or court trial.
(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 they shall, with leave of court, execute in open court, a written waiver of their right to be personally present, as provided by paragraph (2).
Notwithstanding the above, at the request of the accused, and with leave of the court, the accused’s participation in the initial court appearance, arraignment, bail hearing, resentencing if the defendant is incarcerated, motion hearings and conferences when no sworn testimony is taken, and plea may be by remote technology, as provided by subdivision (c). This paragraph does not permit the use of remote technology for a jury or court trial.
(2) The accused may execute a written waiver of their right to be personally present, approved by their 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 their 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 knowingly, intelligently, and voluntarily 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 their interest is represented at all times by the presence of their attorney the same as if the defendant were personally present in court, and further agrees that notice to their attorney that their presence in court
on a particular day at a particular time is required is notice to the defendant of the requirement of their appearance at that time and place.”
(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 remote technology 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 the 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 their plea while physically present in the courtroom if they request to do so. If the defendant decides not to exercise the right to be physically present in the courtroom, they 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) A defendant, whether in or out of custody, who does not wish to be personally present for noncritical portions of a criminal proceeding or the trial when no sworn testimony 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. The defendant may also consent to appear remotely for noncritical portions of criminal proceedings when no sworn testimony is taken. The court may, when a defendant has waived the right to be personally present, 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
proceedings when no sworn testimony is taken, including motions in limine, by remote technology 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 not be required to be personally present with the defendant for noncritical portions of the proceedings when no sworn testimony is taken, if the remote technology allows for private communication between the defendant and the attorney prior to and during the noncritical portion of the proceedings when no sworn testimony is taken. Any private communication shall be confidential and privileged pursuant to Section 952 of the Evidence Code.
(B) If the defendant is incarcerated in state prison and the defendant agrees, the provisions of Section 977.2 apply to resentencing.
This paragraph does not permit the use of remote technology for a jury or court trial.
(C) This paragraph does not expand or limit the right of a defendant to be personally present with their counsel at a particular proceeding as required by Section 15 of Article I of the California Constitution.
(d) (1) Notwithstanding any other provision in this section, the court may allow a defendant to appear by counsel on that day, at a trial, hearing, or other proceeding, with or without a written waiver, if the court finds, by clear and convincing evidence, all of the following to be true:
(A) The defendant is in custody and is refusing, without good cause, to appear in court on that day for that trial,
hearing, or other proceeding.
(B) The defendant has been informed of their right and obligation to be personally present in court.
(C) The defendant has been informed that the trial, hearing, or other proceeding will proceed without the defendant being present.
(D) The defendant has been informed that they have the right to remain silent during the trial, hearing, or other proceeding.
(E) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront any witnesses against them or to testify on their own behalf.
(F) The defendant has been informed whether or not defense counsel will be present.
(2) The court shall state on the record the reasons for the court’s findings and shall cause those findings and reasons to be entered into the minutes.
(3) If the trial, hearing, or other proceeding lasts for more than one day, the court is required to make the findings required by this subdivision anew for each day that the defendant is absent.
(4) This subdivision does not apply to any trial, hearing, or other proceeding in which the defendant was personally present in court at the commencement of the trial, hearing, or other proceeding.
(e) If the accused is physically
present in court, counsel for the accused, the prosecution, and the judicial officer shall be present in the courtroom.
(f) When the court conducts a criminal proceeding that will be reported by an official reporter or official reporter pro tempore, the reporter shall be physically present in the same room as the judicial officer.
(g) When a court interpreter is used in a criminal proceeding, the court interpreter shall be physically present in the same room as the judicial officer.
(h) The court shall require any person who participates remotely in a criminal proceeding to observe proper courtroom decorum, including, but not limited to, observing the same dress code and behavior as would be observed if physically
in the courtroom and avoiding any extraneous noise or distractions.
(i) The court shall not permit a prosecuting attorney, defense counsel, the accused, or a witness to appear or participate in a criminal proceeding through the use of remote technology, and shall continue any criminal proceeding being conducted with the use of remote technology, if any of the following conditions are present and cannot be resolved:
(1) The court does not have the technology necessary to conduct the proceeding remotely.
(2) Although the court has the requisite technology, the quality of the technology or audibility at a proceeding or the length of the proceeding prevents the effective management or resolution of the proceeding.
(3) The quality of the technology or audibility at a proceeding inhibits the court reporter’s ability to accurately prepare and certify a transcript of the proceeding.
(4) The court reporter is unable to capture the verbatim record and certify a transcript of any proceeding that is conducted remotely, in whole or in part, to the same extent and in the same manner as if it were not conducted remotely.
(5) A confidential remote proceeding has been infiltrated or otherwise interrupted by unauthorized parties.
(6) The quality of the technology or audibility at a proceeding
inhibits the accused’s ability to understand or participate in the proceeding.
(7) The quality of the technology or audibility at a proceeding inhibits defense counsel from being able to provide effective representation to the accused.
(8) The quality of the technology or audibility at a proceeding inhibits a court interpreter’s ability to provide language access, including the ability to communicate and translate directly with the accused and the court during the proceeding.
(j) The Judicial Council shall adopt minimum standards for the courtroom technology necessary to permit remote participation in criminal proceedings. Such standards shall include, but not be limited to, hard-wired or other reliable
high-speed internet connections for the judicial officer and court reporter, and monitors, dedicated cameras, speakers, and microphones so the judicial officer, court reporter, and court interpreter can appropriately see and hear remote participants, as well as to ensure that remote participants can appropriately see and hear the judicial officer and other courtroom participants.
(k) The Judicial Council shall adopt other rules and standards as are necessary to implement the policies and provisions of this section.
(l) A superior court that uses remote technology for criminal proceedings shall post on its internet website a continuing invitation for interested parties, including attorneys, court reporters, and court interpreters, to provide written feedback to the superior court
on the use of remote technology in criminal proceedings. Superior courts shall forward copies of the written feedback to the Judicial Council on at least a quarterly basis. The Judicial Council shall compile the written feedback received by the superior courts and provide a copy of the written feedback to the chairs of the Senate and Assembly Committees on Judiciary and Senate and Assembly Committees on Public Safety, semiannually, commencing July 1, 2024.
(m) For the purposes of this section, “remote technology” means two-way electronic audiovideo communication.
(n) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
SEC. 3.SEC. 2.
Section 977.3 is added to the Penal Code, to read:977.3.
(a) Only when authorized by Section 1340, 1347.5, or 2624, and consistent with the constitutional rights of the accused, the court may permit a witness in a misdemeanor or felony proceeding to testify through the use of remote technology. Except as authorized by this section, the witness shall be physically present in the courtroom when presenting live testimony in misdemeanor or felony proceedings.(b) For the purposes of this section, “remote technology” means two-way electronic audiovideo communication.
