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AB-141 Jurors: electronic communications.(2011-2012)

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AB141:v97#DOCUMENT

Assembly Bill No. 141
CHAPTER 181

An act to amend Sections 611, 613, and 1209 of the Code of Civil Procedure, and to amend Sections 166, 1122, and 1128 of the Penal Code, relating to jurors.

[ Approved by Governor  August 05, 2011. Filed with Secretary of State  August 05, 2011. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 141, Fuentes. Jurors: electronic communications.
(1) Existing law requires the court in a jury trial to admonish the jury that it is their duty not to converse with, or permit themselves to be addressed by, any other person on any subject of the trial. The court is required to provide the admonishment in a civil proceeding when the jurors are permitted to separate during the trial, and when the case is submitted to the jury, and, in a criminal proceeding, after the jury has been sworn and before the people’s opening address, at each adjournment of the court, and when the jurors are permitted by the court to separate after the case is submitted to the jury. An officer having the jury under his or her charge shall not permit any communication to be made to them, or make any himself or herself, as specified.
This bill would expand those admonishments to include the conduct of research or dissemination of information on any subject of the trial. The bill would require the court, when admonishing the jury against conversation, research, or dissemination of information pursuant to these provisions, to clearly explain, as part of the admonishment, that the prohibition applies to all forms of electronic and wireless communication. The bill would require the officer in charge of a jury to prevent any form of electronic or wireless communication.
(2) Existing law provides that certain acts or omissions in respect to a court of justice, or proceedings therein, are civil contempts of the authority of the court, including, among other things, disobedience of any lawful judgment, order, or process of the court. Existing law also specifies certain criminal contempts of court, punishable as a misdemeanor, including, among other things, resistance willfully offered by a person to the lawful order or process of a court.
This bill would make the willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research, punishable as either a civil or criminal contempt of court pursuant to those provisions. By expanding the scope of an existing crime, the bill would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 611 of the Code of Civil Procedure is amended to read:

611.
 If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to conduct research, disseminate information, or converse with, or permit themselves to be addressed by, any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them. The court shall clearly explain, as part of the admonishment, that the prohibition on research, dissemination of information, and conversation applies to all forms of electronic and wireless communication.

SEC. 2.

 Section 613 of the Code of Civil Procedure is amended to read:

613.
 When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place, under charge of an officer, until at least three-fourths of them agree upon a verdict or are discharged by the court. Unless by order of the court, the officer having them under his or her charge shall not permit any communication to be made to them, including any form of electronic or wireless communication, or make any himself or herself, except to ask them if they or three-fourths of them are agreed upon a verdict. The officer shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.

SEC. 3.

 Section 1209 of the Code of Civil Procedure is amended to read:

1209.
 (a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:
(1) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.
(2) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding.
(3) Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service.
(4) Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court.
(5) Disobedience of any lawful judgment, order, or process of the court.
(6) Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.
(7) Rescuing any person or property in the custody of an officer by virtue of an order or process of that court.
(8) Unlawfully detaining a witness or party to an action while going to, remaining at, or returning from the court where the action is on the calendar for trial.
(9) Any other unlawful interference with the process or proceedings of a court.
(10) Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness.
(11) When summoned as a juror in a court, neglecting to attend or serve as a juror, or improperly conversing with a party to an action to be tried at the court, or with any other person, in relation to the merits of the action, or receiving a communication from a party or other person in respect to the action, without immediately disclosing the communication to the court.
(12) Disobedience by an inferior tribunal or judicial officer of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after the action or special proceeding is removed from the jurisdiction of the inferior tribunal or judicial officer.
(b) A speech or publication reflecting upon or concerning a court or an officer thereof shall not be treated or punished as a contempt of the court unless made in the immediate presence of the court while in session and in such a manner as to actually interfere with its proceedings.
(c) Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting an attorney, his or her agent, investigator, or any person acting under the attorney’s direction, in the preparation and conduct of an action or proceeding, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, the violation of which is the basis of the contempt, except for conduct proscribed by subdivision (b) of Section 6068 of the Business and Professions Code, relating to an attorney’s duty to maintain respect due to the courts and judicial officers.
(d) Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting a public safety employee acting within the scope of employment for reason of the employee’s failure to comply with a duly issued subpoena or subpoena duces tecum, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, a violation of which is the basis for the contempt.
As used in this subdivision, “public safety employee” includes any peace officer, firefighter, paramedic, or any other employee of a public law enforcement agency whose duty is either to maintain official records or to analyze or present evidence for investigative or prosecutorial purposes.

SEC. 4.

 Section 166 of the Penal Code is amended to read:

166.
 (a) Except as provided in subdivisions (b), (c), and (d), a person guilty of any of the following contempts of court is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed during the sitting of a court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.
(2) Behavior specified in paragraph (1) that is committed in the presence of a referee, while actually engaged in a trial or hearing, pursuant to the order of a court, or in the presence of any jury while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law.
(3) A breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of the court.
(4) Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by a court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order or process of a court.
(6) Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.
(7) The contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question.
(8) The publication of a false or grossly inaccurate report of the proceedings of a court.
(9) Presenting to a court having power to pass sentence upon a prisoner under conviction, or to a member of the court, an affidavit, testimony, or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon the prisoner, except as provided in this code.
(10) Willful disobedience of the terms of an injunction that restrains the activities of a criminal street gang or any of its members, lawfully issued by a court, including an order pending trial.
(b) (1) A person who is guilty of contempt of court under paragraph (4) of subdivision (a) by willfully contacting a victim by telephone or mail, or directly, and who has been previously convicted of a violation of Section 646.9 shall be punished by imprisonment in a county jail for not more than one year, by a fine of five thousand dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a victim in violation of paragraph (1) is not a defense to a violation of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), a willful and knowing violation of a protective order or stay-away court order issued pursuant to Section 136.2, in a pending criminal proceeding involving domestic violence, as defined in Section 13700, or issued as a condition of probation after a conviction in a criminal proceeding involving domestic violence, as defined in Section 13700, or elder or dependent adult abuse, as defined in Section 368, or that is an order described in paragraph (3), shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury, the person shall be imprisoned in a county jail for at least 48 hours, whether a fine or imprisonment is imposed, or the sentence is suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) An order issued pursuant to Section 6320 or 6389 of the Family Code.
(B) An order excluding one party from the family dwelling or from the dwelling of the other.
(C) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the orders described in paragraph (1).
(4) A second or subsequent conviction for a violation of an order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or “a credible threat” of violence, as provided in subdivisions (c) and (d) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or in the state prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary responsibility for the enforcement of the orders described in paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of the Code of Civil Procedure, shall be punished under subdivision (g) of Section 12021.
(2) A person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (h) of Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of subdivision (c), the court shall impose probation consistent with Section 1203.097.
(2) If probation is granted upon conviction of a violation of subdivision (c), the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women’s shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
(3) For an order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under this subdivision or subdivision (c), the court shall make a determination of the defendant’s ability to pay. In no event shall an order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.
(4) If the injury to a married person is caused in whole, or in part, by the criminal acts of his or her spouse in violation of subdivision (c), the community property shall not be used to discharge the liability of the offending spouse for restitution to the injured spouse required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents required by this subdivision, until all separate property of the offending spouse is exhausted.
(5) A person violating an order described in subdivision (c) may be punished for any substantive offenses described under Section 136.1 or 646.9. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1 or 646.9. However, a person held in contempt for a violation of subdivision (c) shall be entitled to credit for any punishment imposed as a result of that violation against any sentence imposed upon conviction of an offense described in Section 136.1 or 646.9. A conviction or acquittal for a substantive offense under Section 136.1 or 646.9 shall be a bar to a subsequent punishment for contempt arising out of the same act.

SEC. 5.

 Section 1122 of the Penal Code is amended to read:

1122.
 (a) After the jury has been sworn and before the people’s opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, all of the following admonitions:
(1) That the jurors shall not converse among themselves, or with anyone else, conduct research, or disseminate information on any subject connected with the trial. The court shall clearly explain, as part of the admonishment, that the prohibition on conversation, research, and dissemination of information applies to all forms of electronic and wireless communication.
(2) That they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media.
(3) That they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case.
(4) That prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial.
(5) That they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury.
(b) The jury shall also, at each adjournment of the court before the submission of the cause to the jury, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to conduct research, disseminate information, or converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them. The court shall clearly explain, as part of the admonishment, that the prohibition on research, dissemination of information, and conversation applies to all forms of electronic and wireless communication.

SEC. 6.

 Section 1128 of the Penal Code is amended to read:

1128.
 After hearing the charge, the jury may either decide in court or may retire for deliberation. If they do not agree without retiring for deliberation, an officer shall be sworn to keep them together for deliberation in some private and convenient place, and, during the deliberation, not to permit any person to speak to or communicate with them, including any form of electronic or wireless communication, nor to do so himself or herself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court. The court shall fix the time and place for deliberation. The jurors shall not deliberate on the case except under those circumstances. If the jurors are permitted by the court to separate, the court shall properly admonish them as provided in subdivision (b) of Section 1122. If the jury is composed of both men and women, and the jurors are not permitted by the court to separate, in the event that it becomes necessary to retire for the night, the women shall be kept in a room or rooms separate and apart from the men.

SEC. 7.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.