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SB-471 Subpoenas: service.(2019-2020)

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Date Published: 09/14/2019 04:00 AM
SB471:v95#DOCUMENT

Enrolled  September 13, 2019
Passed  IN  Senate  September 11, 2019
Passed  IN  Assembly  September 10, 2019
Amended  IN  Assembly  September 06, 2019
Amended  IN  Assembly  September 03, 2019
Amended  IN  Assembly  July 01, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 471


Introduced by Senator Stern

February 21, 2019


An act to amend Section 1328d of, and to repeal Sections 1328a, 1328b, and 1328c of, the Penal Code, relating to subpoenas.


LEGISLATIVE COUNSEL'S DIGEST


SB 471, Stern. Subpoenas: service.
Existing law provides that the process by which the attendance of a witness before a court or magistrate is required in a criminal action is a subpoena, which may be signed and issued by any of specified persons, including courts, district attorneys, and public defenders. A subpoena is required to be substantially in a prescribed form.
Existing law authorizes service of a subpoena to be made by delivery of the subpoena to the witness personally, or by mail or messenger. Existing law requires service to be effected when the witness acknowledges receipt of the subpoena to the sender and identifies themselves, as specified. Existing law requires the sender to make a written notation of the identifying information obtained. Existing law makes a failure to comply with a subpoena issued and acknowledged pursuant to these provisions punishable as a contempt.
This bill would additionally authorize delivery of a subpoena by electronic mail or facsimile transmission. The bill would specify that delivery of a subpoena pursuant to this provision does not apply to the delivery of a subpoena to a peace officer for events or transactions perceived or investigated in the course of the officer’s duties, which is governed by other provisions of law.
By applying the punishment of contempt to the failure to comply with a subpoena issued by electronic mail or facsimile transmission, thereby expanding the scope of a crime, this bill would impose a state-mandated local program.
Existing law governs the procedures that apply to the issuance of a telegraphic copy of a subpoena for a witness in a criminal proceeding by telegraph or teletype.
This bill would repeal those provisions.
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 1328a of the Penal Code is repealed.

SEC. 2.

 Section 1328b of the Penal Code is repealed.

SEC. 3.

 Section 1328c of the Penal Code is repealed.

SEC. 4.

 Section 1328d of the Penal Code is amended to read:

1328d.
 (a) Notwithstanding Section 1328, except as specified in subdivision (c) of Section 1328, a subpoena may be delivered by mail, messenger, electronic mail, or facsimile transmission. Service shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, over the internet by email or by completion of the sender’s online form, or in person, and identifies themselves by reference to their date of birth and driver’s license number or Department of Motor Vehicles identification card number. The sender shall make a written notation of the identifying information obtained during any acknowledgment by telephone or in person. The sender shall retain a copy of any acknowledgment received over the internet until the court date for which the subpoena was issued or until any further date as specified by the court. A subpoena issued and acknowledged pursuant to this section shall have the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state; provided, that a warrant of arrest or a body attachment may not be issued based upon a failure to appear after being subpoenaed pursuant to this section.
(b) A party requesting a continuance, based upon the failure of a witness to appear in court at the time and place required for their appearance or testimony pursuant to a subpoena, shall prove to the court that the party has complied with this section. That continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law, including the requirements of Sections 861 and 1382.

SEC. 5.

 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.