STAFF REPORT
Meeting Date: August 6, 2024
To: Honorable Mayor & City Council
From: Cynthia Owens, Municipal Affairs Program Manager
Subject: Request for Direction on Senate Bill 99 (Umberg) – Law Enforcement Agencies: Military Equipment
Attachment: 1. Bill Text
2. League of California Cities Letter of Opposition
3. California State Sheriff’s Association Letter of Opposition
INTRODUCTION
This item requests the City Council consider taking a position on Senate Bill 99 (Umberg) – Law enforcement agencies: military equipment. This bill prohibits a governing body from approving a military equipment use policy if it contains military equipment from a manufacturer or seller that the United States Armed Forces has been prohibited by federal law or regulation from purchasing.
The League of California Cities (Cal Cities), law enforcement agencies across California, and the Beverly Hills Police Department (BHPD) are concerned of the unintentional impacts of Senate Bill 99 (“SB 99”) as federal law prohibits the purchase of unmanned aerial vehicles or drones from certain foreign countries and therefore are opposed to this bill.
SB 99 involves a policy matter that is not specifically addressed within the adopted Legislative Platform language; therefore, staff is seeking direction from the City Council to take a position on this bill.
DISCUSSION
As originally written, SB 99 would extend the sunset to provisions relating to remote proceedings in criminal cases, which passed out of the state senate on May 22. With the bill now in the state assembly, Senator Umberg gutted and amended SB 99 on June 10 to prohibit law enforcement agencies from purchasing military equipment if it has been prohibited by federal law or regulation from being purchased by the United States Armed Forces (Attachment 1).
Currently, law enforcement agencies must obtain approval from their elected body to purchase military equipment. According to Senator Umberg:
“The definition of military equipment is broad, and state law requires the requesting agency to justify the purchase. However, the list of Meeting Date: August 6, 2024
requirements fails to consider developing Department of Defense policies pertaining to prohibited foreign-made equipment.
One example of evolving prohibition policies is the increased domestic sale and use of Chinese drones manufactured by DJI. The company accounted for 58 percent of the US commercial market in 2022, with a large percentage of sales going to law enforcement agencies. However, many policymakers and the Department of Defense consider DJI drones a national security threat. The New York Times recently reported that cybersecurity researchers have found that Beijing could potentially exploit vulnerabilities in an app that controls the drone to gain access to large amounts of personal information. The Pentagon has banned the use of DJI drones, and in January, the Interior Department decided to continue grounding its fleet of drones over security fears. Federal legislation has also been introduced to ban all domestic sales.
If the US military deems certain equipment unsuitable for its use, state and local policy should apply the same standard when considering the procurement of military equipment for local law enforcement. SB 99 simply specifies that an applicable governing body shall not approve a military equipment policy for local law enforcement if the United States Armed Forces are prohibited from purchasing that equipment from a manufacturer or seller.”
It is worth noting the drones manufactured by DJI are in use in Beverly Hills as these drones offer far superior inflight characteristics, camera clarity, and zoom capabilities than any other drone offered in the United States market. The drones on the market in the United States are also $6,000 to $8,000 more expensive per unit than the current DJI product. While the United States market is working on drones that will fit the need of BHPD and the City, those drones are over a year out from testing and production.
BHPD uses Motorola Cape software to ensure the safe transmission of data from the drone to the Real Time Watch Center. This software offers end-to-end encryption of the data; therefore, we believe Senator Umberg’s concerns over vulnerabilities in the app are a non-issue.
On July 8, 2024, Cal Cities held a summer recess webinar briefing on priority state legislative bills. During the webinar, Cal Cities spoke about SB 99. Cal Cities stated their concerns with SB 99 is that the United States military are prohibited from purchasing drones from China, yet China produces some of the higher quality drones which law enforcement and fire personnel can use. On July 24, they issued a letter of opposition on SB 99 (Attachment 2)
The California State Sheriff’s Association have also sent a letter of opposition to Senator Umberg (Attachment 3) stating that while they understood the concerns mentioned by the Senator regarding data security, the net effect of the measure would prohibit the use of certain technologies (specifically drones) by law enforcement agencies, despite any security measures and data guidelines that may be in place. The letter further mention that there are measures the local agency could take to prevent the sharing of data back to the manufacturer of the equipment.
Meeting Date: August 6, 2024
On July 2, SB 99 failed its initial passage out of the Assembly Public Safety Committee and was granted reconsideration. On a second vote in the Assembly Public Safety Committee on July 2, SB 99 passed and is now in the Assembly Appropriations Committee.
Should SB 99 pass, the City of Beverly Hills would need to acquire new drones which are considerably more expensive and may not be as high quality as those currently deployed in the City. Additionally, staff would need to be retrained in the use of new equipment. Also, drones made in the United States most likely use technological parts and equipment manufactured in China, so it is unclear how this may impact the future of drones use by BHPD.
SB 99 is being brought directly to the City Council for direction as the soonest this item could be presented to the City Council Legislative / Lobby Liaisons (Vice Mayor Mirisch and Councilmember Nazarian) is August 12. The City Council would then be asked to ratify the recommended position on August 20, just 11 days before the end of the state legislative session. Due to the potential impact on public safety in the City, staff consulted with Mayor Friedman who concurred with moving SB 99 directly to the City Council for direction.
FISCAL IMPACT
Unknown. The impact could be significant due to the costs to purchase new drones and retrain staff.
RECOMMENDATION
Staff recommends the City Council consider taking a position on SB 99 due to the potential negative impacts on public safety. Positions which the City Council may take include:
• Oppose (staff’s recommendation)
• Oppose unless amended
• Remain Neutral
• Support
• Support if Amended
• Any other position the City Council may wish to provide on SB 99 Mark Stainbrook
Police Chief
Keith Sterling
Deputy City Manager
Concurred By Approved By
Attachment 1
AMENDED IN ASSEMBLY JUNE 10, 2024
AMENDED IN SENATE APRIL 10, 2023
AMENDED IN SENATE MARCH 14, 2023
SENATE BILL No. 99
Introduced by Senator Umberg
January 18, 2023
An act to amend Section 71651.1 of the Government Code, and to amend Sections 977, 977.3, and 1043.5 of the Penal Code, relating to courts. An act to amend Section 7071 of the Government Code, relating to military equipment.
legislative counsel’s digest
SB 99, as amended, Umberg. Courts: remote proceedings for criminal cases. Law enforcement agencies: military equipment.
Existing law requires a law enforcement agency, as defined, to obtain approval of the applicable governing body, by adoption of a military equipment use policy prior to taking certain actions relating to the funding, acquisition, or use of military equipment, as defined. Existing law requires the governing body to approve a military equipment use policy only if it determines compliance with certain standards, including that the military equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
This bill would add to those standards that the United States Armed Forces has not been prohibited by federal law or regulation from purchasing the military equipment from the manufacturer or seller of the military equipment. By adding to the duties of local governing bodies
96 with respect to the acquisition of military equipment, this bill would impose a state-mandated local program.
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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
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 verbatim record for a remote criminal proceeding.
This bill would extend this provision until January 1, 2028.
Existing law allows a defendant in a misdemeanor case to appear by counsel, except as specified. Until January 1, 2024, existing law allows a court to conduct all proceedings, except jury and court trials, remotely through the use of remote technology if a defendant agrees. Existing law requires a defendant in a felony case to be physically present 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. Existing law allows, until January 1, 2024, a defendant to be physically or remotely present at all other proceedings, unless the defendant waived their right to be physically or remotely present with leave of the court and approval by the defendant’s counsel.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Existing law generally allows, until January 1, 2024, upon a defendant’s waiver of the right to be physically present, criminal proceedings to be conducted through the use of remote technology.
Commencing on January 1, 2024, existing law authorizes a court to permit the initial court appearance and arraignment of a defendant held in any state, county, or local facility, under specified circumstances, to be conducted by 2-way electronic audiovideo communication between the defendant and the courtroom in lieu of the defendant’s physical presence.
96 SB 99 — 2 —
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028, and extend the implementation of provisions that would commence on January 1, 2024, until January 1, 2028.
Existing law authorizes the court, until January 1, 2024, to direct the defendant to be physically present at any particular felony proceeding, prohibits a defendant charged with a felony from appearing remotely for sentencing, except as specified, and prohibits a defendant charged with a felony or misdemeanor from appearing remotely for a jury or court trial, except as specified.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Existing law, until January 1, 2024, authorizes the court to allow a prosecuting attorney or defense counsel to participate in a criminal proceeding through the use of remote technology, requires a court to require a prosecuting attorney, defense counsel, defendant, or witness to appear in person at a proceeding under specified circumstances, and requires a reporter to be physically present in the courtroom when the court conducts a remote proceeding that is reported.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Existing law authorizes, until January 1, 2024, a witness in a criminal proceeding to testify using remote technology, as provided by statutes regarding the examination of victims of sexual crimes and conditional examinations of witnesses.
This bill would extend these provisions until January 1, 2028, and broaden the provisions to testifying remotely as otherwise provided by any law.
Existing law requires a defendant to be personally present in a preliminary hearing unless otherwise specified. Existing law prohibits these provisions from limiting the right of a defendant to waive the right to be present. Existing law, until January 1, 2024, prohibits the defendant’s right to waive the right to appear through the use of remote technology from being limited by these provisions.
This bill would extend the provisions that would expire on January 1, 2024, until January 1, 2028.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes.
96 — 3 — SB 99
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 7071 of the Government Code is amended line 2 to read:
line 3 7071. (a) (1) A law enforcement agency shall obtain approval line 4 of the governing body, by an ordinance adopting a military line 5 equipment use policy at a regular meeting of the governing body line 6 held pursuant to the Bagley-Keene Open Meeting Act (Article 9 line 7 (commencing with Section 11120) of Chapter 1 of Part 1 of line 8 Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 line 9 (commencing with Section 54950) of Part 1 of Division 2 of Title line 10 5), as applicable, prior to engaging in any of the following:
line 11 (A) Requesting military equipment made available pursuant to line 12 Section 2576a of Title 10 of the United States Code. line 13 (B) Seeking funds for military equipment, including, but not line 14 limited to, applying for a grant, soliciting or accepting private, line 15 local, state, or federal funds, in-kind donations, or other donations line 16 or transfers.
line 17 (C) Acquiring military equipment either permanently or line 18 temporarily, including by borrowing or leasing. line 19 (D) Collaborating with another law enforcement agency in the line 20 deployment or other use of military equipment within the territorial line 21 jurisdiction of the governing body.
line 22 (E) Using any new or existing military equipment for a purpose, line 23 in a manner, or by a person not previously approved by the line 24 governing body pursuant to this chapter.
line 25 (F) Soliciting or responding to a proposal for, or entering into line 26 an agreement with, any other person or entity to seek funds for, line 27 apply to receive, acquire, use, or collaborate in the use of, military line 28 equipment.
line 29 (G) Acquiring military equipment through any means not line 30 provided by this paragraph.
line 31 (2) No later than May 1, 2022, a law enforcement agency line 32 seeking to continue the use of any military equipment that was line 33 acquired prior to January 1, 2022, shall commence a governing line 34 body approval process in accordance with this section. If the line 35 governing body does not approve the continuing use of military line 36 equipment, including by adoption pursuant to this subdivision of line 37 a military equipment use policy submitted pursuant to subdivision line 38 (b), within 180 days of submission of the proposed military 96 SB 99 — 4 —
line 1 equipment use policy to the governing body, the law enforcement line 2 agency shall cease its use of the military equipment until it receives line 3 the approval of the governing body in accordance with this section. line 4 (b) In seeking the approval of the governing body pursuant to line 5 subdivision (a), a law enforcement agency shall submit a proposed line 6 military equipment use policy to the governing body and make line 7 those documents available on the law enforcement agency’s line 8 internet website at least 30 days prior to any public hearing line 9 concerning the military equipment at issue.
line 10 (c) The governing body shall consider a proposed military line 11 equipment use policy as an agenda item for an open session of a line 12 regular meeting and provide for public comment in accordance line 13 with the Bagley-Keene Open Meeting Act (Article 9 (commencing line 14 with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title line 15 2) or the Ralph M. Brown Act (Chapter 9 (commencing with line 16 Section 54950) of Part 1 of Division 2 of Title 5), as applicable. line 17 (d) (1) The governing body shall only approve a military line 18 equipment use policy pursuant to this chapter if it determines all line 19 of the following:
line 20 (A) The military equipment is necessary because there is no line 21 reasonable alternative that can achieve the same objective of officer line 22 and civilian safety.
line 23 (B) The proposed military equipment use policy will safeguard line 24 the public’s welfare, safety, civil rights, and civil liberties. line 25 (C) If purchasing the equipment, the equipment is reasonably line 26 cost effective compared to available alternatives that can achieve line 27 the same objective of officer and civilian safety. line 28 (D) Prior military equipment use complied with the military line 29 equipment use policy that was in effect at the time, or if prior uses line 30 did not comply with the accompanying military equipment use line 31 policy, corrective action has been taken to remedy nonconforming line 32 uses and ensure future compliance.
line 33 (E) The United States Armed Forces has not been prohibited line 34 by federal law or regulation from purchasing the military line 35 equipment from the manufacturer or seller of the military line 36 equipment.
line 37 (2) In order to facilitate public participation, any proposed or line 38 final military equipment use policy shall be made publicly available line 39 on the internet website of the relevant law enforcement agency for line 40 as long as the military equipment is available for use. 96 — 5 — SB 99
line 1 (e) (1) The governing body shall review any ordinance that it line 2 has adopted pursuant to this section approving the funding, line 3 acquisition, or use of military equipment at least annually and, line 4 subject to paragraph (2), vote on whether to renew the ordinance line 5 at a regular meeting held pursuant to the Bagley-Keene Open line 6 Meeting Act (Article 9 (commencing with Section 11120) of line 7 Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown line 8 Act (Chapter 9 (commencing with Section 54950) of Part 1 of line 9 Division 2 of Title 5), as applicable.
line 10 (2) The governing body shall determine, based on the annual line 11 military equipment report submitted pursuant to Section 7072, line 12 whether each type of military equipment identified in that report line 13 has complied with the standards for approval set forth in line 14 subdivision (d). If the governing body determines that a type of line 15 military equipment identified in that annual military equipment line 16 report has not complied with the standards for approval set forth line 17 in subdivision (d), the governing body shall either disapprove a line 18 renewal of the authorization for that type of military equipment line 19 or require modifications to the military equipment use policy in a line 20 manner that will resolve the lack of compliance. line 21 (f) Notwithstanding subdivisions (a) to (e), inclusive, if a city line 22 contracts with another entity for law enforcement services, the city line 23 shall have the authority to adopt a military equipment use policy line 24 based on local community needs.
line 25 SEC. 2. If the Commission on State Mandates determines that line 26 this act contains costs mandated by the state, reimbursement to line 27 local agencies and school districts for those costs shall be made line 28 pursuant to Part 7 (commencing with Section 17500) of Division line 29 4 of Title 2 of the Government Code.
line 30 SECTION 1. Section 71651.1 of the Government Code is line 31 amended to read:
line 32 71651.1. (a) Consistent with federal and California labor law, line 33 a trial court shall not retaliate against an official reporter or official line 34 reporter pro tempore who notifies the judicial officer that line 35 technology or audibility issues are interfering with the creation of line 36 the verbatim record for a remote proceeding pursuant to line 37 subdivisions (f) and (g) of Section 977 of the Penal Code. line 38 (b) This section shall remain in effect only until January 1, 2028, line 39 and as of that date is repealed.
96 SB 99 — 6 —
line 1 SEC. 2. Section 977 of the Penal Code, as amended by Section line 2 12 of Chapter 57 of the Statutes of 2022, is amended to read:
line 3 977. (a) (1) In all cases in which the accused is charged with line 4 a misdemeanor only, they may appear by counsel only, except as line 5 provided in paragraphs (2) and (3). If the accused agrees, the initial line 6 court appearance, arraignment, plea, and all other proceedings, line 7 except jury and court trials, may be conducted remotely through line 8 the use of technology, as provided by subdivision (c). line 9 (2) If the accused is charged with a misdemeanor offense line 10 involving domestic violence, as defined in Section 6211 of the line 11 Family Code, or a misdemeanor violation of Section 273.6, the line 12 accused shall be present for arraignment and sentencing, and at line 13 any time during the proceedings when ordered by the court for the line 14 purpose of being informed of the conditions of a protective order line 15 issued pursuant to Section 136.2.
line 16 (3) If the accused is charged with a misdemeanor offense line 17 involving driving under the influence, in an appropriate case, the line 18 court may order a defendant to be present for arraignment, at the line 19 time of plea, or at sentencing. For purposes of this paragraph, a line 20 misdemeanor offense involving driving under the influence shall line 21 include a misdemeanor violation of any of the following:
line 22 (A) Subdivision (b) of Section 191.5.
line 23 (B) Section 23103 as specified in Section 23103.5 of the Vehicle line 24 Code.
line 25 (C) Section 23152 of the Vehicle Code.
line 26 (D) Section 23153 of the Vehicle Code.
line 27 (b) (1) Except as provided in subdivision (c), in all cases in line 28 which a felony is charged, the accused shall be physically present line 29 at the arraignment, at the time of plea, during the preliminary line 30 hearing, during those portions of the trial when evidence is taken line 31 before the trier of fact, and at the time of the imposition of line 32 sentence. The accused shall be physically or remotely present at line 33 all other proceedings unless they waive their right to be physically line 34 or remotely present, with leave of court and with approval by the line 35 defendant’s counsel.
line 36 (2) The waiver of a defendant’s right to be physically or line 37 remotely present may be in writing and filed with the court or, line 38 with the court’s consent, may be entered personally by the line 39 defendant or by the defendant’s counsel of record. 96 — 7 — SB 99
line 1 (A) A defendant’s personal waiver of the right to be physically line 2 or remotely present shall be on the record and state that the line 3 defendant has been advised of the right to be physically or remotely line 4 present for the hearing at issue and agrees that notice to the attorney line 5 that the defendant’s physical or remote presence in court at a future line 6 date and time is required is notice to the defendant of that line 7 requirement.
line 8 (B) A waiver of the defendant’s physical or remote presence line 9 may be entered by counsel, after counsel has stated on the record line 10 that the defendant has been advised of the right to be physically line 11 or remotely present for the hearing at issue, has waived that right, line 12 and agrees that notice to the attorney that the defendant’s physical line 13 or remote presence in court at a future date and time is required is line 14 notice to the defendant of that requirement.
line 15 (3) The court may specifically direct the defendant, either line 16 personally or through counsel, to be physically or remotely present line 17 at any particular proceeding or portion thereof, including upon line 18 request of a victim, to the extent required by Section 28 of Article line 19 I of the California Constitution.
line 20 (4) A written waiver of the defendant’s physical or remote line 21 presence shall be substantially in the following form:
line 22
line 23 “Waiver of Defendant’s Physical or Remote Presence” line 24
line 25 “The undersigned defendant, having been advised of their right line 26 to be present at all stages of the proceedings, including, but not line 27 limited to, presentation of and arguments on questions of fact and line 28 law, and to be confronted by and cross-examine all witnesses, line 29 hereby knowingly, intelligently, and voluntarily waives the right line 30 to be physically or remotely present at the hearing of any motion line 31 or other proceeding in this cause. The undersigned defendant line 32 hereby requests the court to proceed during every absence of the line 33 defendant that the court may permit pursuant to this waiver, and line 34 hereby agrees that their interest is represented at all times by the line 35 presence of their attorney the same as if the defendant were line 36 physically or remotely present in court, and further agrees that line 37 notice to their attorney that their physical or remote presence in line 38 court on a particular day at a particular time is required is notice line 39 to the defendant of the requirement of their physical or remote line 40 appearance at that time and place.”
96 SB 99 — 8 —
line 1
line 2 (c) (1) (A) Upon waiver of the right to be physically present line 3 by the defendant, criminal proceedings may be conducted through line 4 the use of remote technology, except as provided in subparagraphs line 5 (D) and (E). The defendant may withdraw the waiver at any time. line 6 (B) The court may specifically direct the defendant, either line 7 personally or through counsel, to be physically present at any line 8 particular felony proceeding or portion thereof, including as line 9 provided in subdivision (f).
line 10 (C) If the defendant is represented by counsel, the attorney shall line 11 not be required to be physically present with the defendant if line 12 remote technology allows for private communication between the line 13 defendant and the attorney prior to and during the proceeding, line 14 unless, upon request of defense counsel, the court allows the line 15 appearance without private communication. Any private line 16 communication shall be confidential and privileged pursuant to line 17 Section 952 of the Evidence Code.
line 18 (D) A defendant charged with a felony or misdemeanor shall line 19 not appear remotely for a jury trial or court trial, except as provided line 20 in subparagraph (A) of paragraph (2).
line 21 (E) A defendant charged with a felony shall not appear remotely line 22 at sentencing, except for postconviction relief proceedings and as line 23 otherwise provided by law.
line 24 (F) A witness may appear at any misdemeanor or felony criminal line 25 proceeding, except for felony trial, remotely pursuant to Section line 26 977.3.
line 27 (2) (A) A felony defendant who does not wish to be physically line 28 or remotely present for noncritical portions of the trial when no line 29 testimonial evidence is taken may make an oral waiver in open line 30 court prior to the proceeding, or may submit a written request to line 31 the court, which the court may grant in its discretion. line 32 (B) This paragraph does not expand or limit the right of a line 33 defendant to be personally present with their counsel at a particular line 34 proceeding as required by Section 15 of Article 1 of the California line 35 Constitution.
line 36 (d) (1) Notwithstanding any other provision in this section, the line 37 court may allow a defendant to appear by counsel on that day, at line 38 a trial, hearing, or other proceeding, with or without a written line 39 waiver, if the court finds, by clear and convincing evidence, all of line 40 the following to be true:
96 — 9 — SB 99
line 1 (A) The defendant is in custody and is refusing, without good line 2 cause, to appear in court on that day for that trial, hearing, or other line 3 proceeding.
line 4 (B) The defendant has been informed of their right and line 5 obligation to be personally present in court.
line 6 (C) The defendant has been informed that the trial, hearing, or line 7 other proceeding will proceed without the defendant being present. line 8 (D) The defendant has been informed that they have the right line 9 to remain silent during the trial, hearing, or other proceeding. line 10 (E) The defendant has been informed that their absence without line 11 good cause will constitute a voluntary waiver of any constitutional line 12 or statutory right to confront any witnesses against them or to line 13 testify on their own behalf.
line 14 (F) The defendant has been informed whether or not defense line 15 counsel will be present.
line 16 (2) The court shall state on the record the reasons for the court’s line 17 findings and shall cause those findings and reasons to be entered line 18 into the minutes.
line 19 (3) If the trial, hearing, or other proceeding lasts for more than line 20 one day, the court is required to make the findings required by this line 21 subdivision anew for each day that the defendant is absent. line 22 (4) This subdivision does not apply to any trial, hearing, or other line 23 proceeding in which the defendant was personally present in court line 24 at the commencement of the trial, hearing, or other proceeding. line 25 (e) A court may, as appropriate and practicable, allow a line 26 prosecuting attorney or defense counsel to participate in a criminal line 27 proceeding through the use of remote technology without being line 28 physically present in the courtroom and in accordance with line 29 subdivision (f).
line 30 (f) Except as otherwise provided by law, the court shall require line 31 a prosecuting attorney, defense counsel, defendant, or witness to line 32 appear in person at a proceeding, if any of the following conditions line 33 are present and cannot be resolved in a reasonable amount of time:
line 34 (1) The court does not have the technology necessary to conduct line 35 the proceeding remotely.
line 36 (2) Although the court has the requisite technology, the quality line 37 of the technology or audibility at a proceeding prevents the line 38 effective management or resolution of the proceeding. 96 SB 99 — 10 —
line 1 (3) The quality of the technology or audibility at a proceeding line 2 inhibits the court reporter’s ability to accurately prepare a transcript line 3 of the proceeding.
line 4 (4) The quality of the technology or audibility at a proceeding line 5 prevents defense counsel from being able to provide effective line 6 representation to the defendant.
line 7 (5) The quality of the technology or audibility at a proceeding line 8 inhibits a court interpreter’s ability to provide language access, line 9 including the ability to communicate and translate directly with line 10 the defendant and the court during the proceeding. line 11 (g) (1) Before the court may proceed with a remote proceeding, line 12 the court shall have a process for a defendant, defense counsel, line 13 prosecuting attorney, witness, official reporter, official reporter line 14 pro tempore, court interpreter, or other court personnel to alert the line 15 judicial officer of technological or audibility issues that arise during line 16 the proceeding.
line 17 (2) When the court conducts a remote proceeding that will be line 18 reported by an official reporter or official reporter pro tempore, line 19 the reporter shall be physically present in a courtroom. line 20 (h) The court shall make findings on the record that any waiver line 21 entered into pursuant to this section is knowingly, voluntarily, and line 22 intelligently made by the defendant.
line 23 (i) The Judicial Council shall adopt rules and standards that are line 24 necessary to implement the policies and provisions of this section line 25 and the intent of the Legislature.
line 26 (j) This section shall remain in effect only until January 1, 2028, line 27 and as of that date is repealed.
line 28 SEC. 3. Section 977 of the Penal Code, as added by Section line 29 13 of Chapter 57 of the Statutes of 2022, is amended to read:
line 30 977. (a) (1) In all cases in which the accused is charged with line 31 a misdemeanor only, they may appear by counsel only, except as line 32 provided in paragraphs (2) and (3). If the accused agrees, the initial line 33 court appearance, arraignment, and plea may be by video, as line 34 provided by subdivision (c).
line 35 (2) If the accused is charged with a misdemeanor offense line 36 involving domestic violence, as defined in Section 6211 of the line 37 Family Code, or a misdemeanor violation of Section 273.6, the line 38 accused shall be present for arraignment and sentencing, and at line 39 any time during the proceedings when ordered by the court for the 96 — 11 — SB 99
line 1 purpose of being informed of the conditions of a protective order line 2 issued pursuant to Section 136.2.
line 3 (3) If the accused is charged with a misdemeanor offense line 4 involving driving under the influence, in an appropriate case, the line 5 court may order a defendant to be present for arraignment, at the line 6 time of plea, or at sentencing. For purposes of this paragraph, a line 7 misdemeanor offense involving driving under the influence shall line 8 include a misdemeanor violation of any of the following:
line 9 (A) Subdivision (b) of Section 191.5.
line 10 (B) Section 23103 as specified in Section 23103.5 of the Vehicle line 11 Code.
line 12 (C) Section 23152 of the Vehicle Code.
line 13 (D) Section 23153 of the Vehicle Code.
line 14 (b) (1) Except as provided in subdivision (c), in all cases in line 15 which a felony is charged, the accused shall be personally present line 16 at the arraignment, at the time of plea, during the preliminary line 17 hearing, during those portions of the trial when evidence is taken line 18 before the trier of fact, and at the time of the imposition of line 19 sentence. The accused shall be personally present at all other line 20 proceedings unless they shall, with leave of court, execute in open line 21 court, a written waiver of their right to be personally present, as line 22 provided by paragraph (2). If the accused agrees, the initial court line 23 appearance, arraignment, and plea may be by video, as provided line 24 by subdivision (c).
line 25 (2) The accused may execute a written waiver of their right to line 26 be personally present, approved by their counsel, and the waiver line 27 shall be filed with the court. However, the court may specifically line 28 direct the defendant to be personally present at any particular line 29 proceeding or portion thereof. The waiver shall be substantially line 30 in the following form:
line 31
line 32 “Waiver of Defendant’s Personal Presence”
line 33
line 34 “The undersigned defendant, having been advised of their right line 35 to be present at all stages of the proceedings, including, but not line 36 limited to, presentation of and arguments on questions of fact and line 37 law, and to be confronted by and cross-examine all witnesses, line 38 hereby waives the right to be present at the hearing of any motion line 39 or other proceeding in this cause. The undersigned defendant line 40 hereby requests the court to proceed during every absence of the 96 SB 99 — 12 —
line 1 defendant that the court may permit pursuant to this waiver, and line 2 hereby agrees that their interest is represented at all times by the line 3 presence of their attorney the same as if the defendant were line 4 personally present in court, and further agrees that notice to their line 5 attorney that their presence in court on a particular day at a line 6 particular time is required is notice to the defendant of the line 7 requirement of their appearance at that time and place.” line 8
line 9 (c) (1) The court may permit the initial court appearance and line 10 arraignment of defendants held in any state, county, or local facility line 11 within the county on felony or misdemeanor charges, except for line 12 those defendants who were indicted by a grand jury, to be line 13 conducted by two-way electronic audiovideo communication line 14 between the defendant and the courtroom in lieu of the physical line 15 presence of the defendant in the courtroom. If the defendant is line 16 represented by counsel, the attorney shall be present with the line 17 defendant at the initial court appearance and arraignment, and may line 18 enter a plea during the arraignment. However, if the defendant is line 19 represented by counsel at an arraignment on an information in a line 20 felony case, and if the defendant does not plead guilty or nolo line 21 contendere to any charge, the attorney shall be present with the line 22 defendant or if the attorney is not present with the defendant, the line 23 attorney shall be present in court during the hearing. The defendant line 24 shall have the right to make their plea while physically present in line 25 the courtroom if they request to do so. If the defendant decides not line 26 to exercise the right to be physically present in the courtroom they line 27 shall execute a written waiver of that right. A judge may order a line 28 defendant’s personal appearance in court for the initial court line 29 appearance and arraignment. In a misdemeanor case, a judge may, line 30 pursuant to this subdivision, accept a plea of guilty or no contest line 31 from a defendant who is not physically in the courtroom. In a line 32 felony case, a judge may, pursuant to this subdivision, accept a line 33 plea of guilty or no contest from a defendant who is not physically line 34 in the courtroom if the parties stipulate thereto. line 35 (2) (A) A defendant who does not wish to be personally present line 36 for noncritical portions of the trial when no testimonial evidence line 37 is taken may make an oral waiver in open court prior to the line 38 proceeding or may submit a written request to the court, which the line 39 court may grant in its discretion. The court may, when a defendant line 40 has waived the right to be personally present, require a defendant 96 — 13 — SB 99
line 1 held in any state, county, or local facility within the county on line 2 felony or misdemeanor charges to be present for noncritical line 3 portions of the trial when no testimonial evidence is taken, line 4 including, but not limited to, confirmation of the preliminary line 5 hearing, status conferences, trial readiness conferences, discovery line 6 motions, receipt of records, the setting of the trial date, a motion line 7 to vacate the trial date, and motions in limine, by two-way line 8 electronic audiovideo communication between the defendant and line 9 the courtroom in lieu of the physical presence of the defendant in line 10 the courtroom. If the defendant is represented by counsel, the line 11 attorney shall not be required to be personally present with the line 12 defendant for noncritical portions of the trial, if the audiovideo line 13 conferencing system or other technology allows for private line 14 communication between the defendant and the attorney prior to line 15 and during the noncritical portion of trial. Any private line 16 communication shall be confidential and privileged pursuant to line 17 Section 952 of the Evidence Code.
line 18 (B) This paragraph does not expand or limit the right of a line 19 defendant to be personally present with their counsel at a particular line 20 proceeding as required by Section 15 of Article 1 of the California line 21 Constitution.
line 22 (d) (1) Notwithstanding any other provision in this section, the line 23 court may allow a defendant to appear by counsel on that day, at line 24 a trial, hearing, or other proceeding, with or without a written line 25 waiver, if the court finds, by clear and convincing evidence, all of line 26 the following to be true:
line 27 (A) The defendant is in custody and is refusing, without good line 28 cause, to appear in court on that day for that trial, hearing, or other line 29 proceeding.
line 30 (B) The defendant has been informed of their right and line 31 obligation to be personally present in court.
line 32 (C) The defendant has been informed that the trial, hearing, or line 33 other proceeding will proceed without the defendant being present. line 34 (D) The defendant has been informed that they have the right line 35 to remain silent during the trial, hearing, or other proceeding. line 36 (E) The defendant has been informed that their absence without line 37 good cause will constitute a voluntary waiver of any constitutional line 38 or statutory right to confront any witnesses against them or to line 39 testify on their own behalf.
96 SB 99 — 14 —
line 1 (F) The defendant has been informed whether or not defense line 2 counsel will be present.
line 3 (2) The court shall state on the record the reasons for the court’s line 4 findings and shall cause those findings and reasons to be entered line 5 into the minutes.
line 6 (3) If the trial, hearing, or other proceeding lasts for more than line 7 one day, the court is required to make the findings required by this line 8 subdivision anew for each day that the defendant is absent. line 9 (4) This subdivision does not apply to any trial, hearing, or other line 10 proceeding in which the defendant was personally present in court line 11 at the commencement of the trial, hearing, or other proceeding. line 12 (e) This section shall become operative on January 1, 2028. line 13 SEC. 4. Section 977.3 of the Penal Code is amended to read:
line 14 977.3. (a) A witness may testify in any misdemeanor or felony line 15 criminal proceeding, except for felony trials, through the use of line 16 remote technology with the written or oral consent of the parties line 17 on the record and with the consent of the court. The defendant line 18 shall waive the right to have a witness testify in person on the line 19 record.
line 20 (b) Notwithstanding subdivision (a), the court may allow a line 21 witness to testify through the use of remote technology as otherwise line 22 provided by any law, including, but not limited to, Sections 1340, line 23 1347.5, and 2624 of this code, Section 16519.63 of the Welfare line 24 and Institutions Code, the holding in Maryland v. Craig (1990) line 25 497 U.S. 836, and the holding in People v. Powell (2011) 194 line 26 Cal.App.4th 1268.
line 27 (c) The court shall make findings on the record that any waiver line 28 entered into pursuant to this section is knowingly, voluntarily, and line 29 intelligently made by the defendant.
line 30 (d) The Judicial Council shall adopt rules and standards that are line 31 necessary to implement the policies and provisions of this section line 32 and the intent of the Legislature.
line 33 (e) This section shall remain in effect only until January 1, 2028, line 34 and as of that date is repealed.
line 35 SEC. 5. Section 1043.5 of the Penal Code, as amended by line 36 Section 15 of Chapter 57 of the Statutes of 2022, is amended to line 37 read:
line 38 1043.5. (a) Except as otherwise provided in this section, the line 39 defendant in a preliminary hearing shall be personally present. 96 — 15 — SB 99
line 1 (b) The absence of the defendant in a preliminary hearing after line 2 the hearing has commenced in their physical presence shall not line 3 prevent continuing the hearing to, and including, holding to answer, line 4 filing an information, or discharging the defendant in any of the line 5 following cases:
line 6 (1) Any case in which the defendant, after being warned by the line 7 judge that they will be removed if they continued their disruptive line 8 behavior, nevertheless insists on acting in a manner so disorderly, line 9 disruptive, and disrespectful of the court that the hearing cannot line 10 be carried on with the defendant present in the courtroom. line 11 (2) Any prosecution for an offense which is not punishable by line 12 death in which the defendant is voluntarily absent. line 13 (c) Any defendant who is absent from a preliminary hearing line 14 pursuant to paragraph (1) of subdivision (b) may reclaim their right line 15 to be present at the hearing as soon as they are willing to act line 16 consistently with the decorum and respect inherent in the concept line 17 of courts and judicial proceedings.
line 18 (d) Subdivisions (a) and (b) shall not limit the right of a line 19 defendant to waive the right to be physically present or to appear line 20 through the use of remote technology in accordance with Section line 21 977.
line 22 (e) (1) For purposes of subdivision (b), a preliminary hearing line 23 shall be deemed to have commenced in the presence of the line 24 defendant if the court finds, by clear and convincing evidence, all line 25 of the following to be true:
line 26 (A) The defendant is in custody and is refusing, without good line 27 cause, to appear in court on that day for that preliminary hearing. line 28 (B) The defendant has been informed of their right and line 29 obligation to be personally present in court.
line 30 (C) The defendant has been informed that the preliminary line 31 hearing will proceed without the defendant being present. line 32 (D) The defendant has been informed that they have the right line 33 to remain silent during the preliminary hearing. line 34 (E) The defendant has been informed that their absence without line 35 good cause will constitute a voluntary waiver of any constitutional line 36 or statutory right to confront any witnesses against them or to line 37 testify on their own behalf.
line 38 (F) The defendant has been informed whether or not defense line 39 counsel will be present.
96 SB 99 — 16 —
line 1 (2) The court shall state on the record the reasons for the court’s line 2 findings and shall cause those findings and reasons to be entered line 3 into the minutes.
line 4 (3) If the preliminary hearing lasts for more than one day, the line 5 court is required to make the findings required by this subdivision line 6 anew for each day that the defendant is absent.
line 7 (4) This subdivision does not apply to any preliminary hearing line 8 in which the defendant was personally present in court at the line 9 commencement of the preliminary hearing.
line 10 (f) This section shall remain in effect only until January 1, 2028, line 11 and as of that date is repealed.
line 12 SEC. 6. Section 1043.5 of the Penal Code, as added by Section line 13 16 of Chapter 57 of the Statutes of 2022, is amended to read:
line 14 1043.5. (a) Except as otherwise provided in this section, the line 15 defendant in a preliminary hearing shall be personally present. line 16 (b) The absence of the defendant in a preliminary hearing after line 17 the hearing has commenced in their physical presence shall not line 18 prevent continuing the hearing to, and including, holding to answer, line 19 filing an information, or discharging the defendant in any of the line 20 following cases:
line 21 (1) Any case in which the defendant, after being warned by the line 22 judge that they will be removed if they continued their disruptive line 23 behavior, nevertheless insists on acting in a manner so disorderly, line 24 disruptive, and disrespectful of the court that the hearing cannot line 25 be carried on with the defendant present in the courtroom. line 26 (2) Any prosecution for an offense which is not punishable by line 27 death in which the defendant is voluntarily absent. line 28 (c) Any defendant who is absent from a preliminary hearing line 29 pursuant to paragraph (1) of subdivision (b) may reclaim their right line 30 to be present at the hearing as soon as they are willing to act line 31 consistently with the decorum and respect inherent in the concept line 32 of courts and judicial proceedings.
line 33 (d) Subdivisions (a) and (b) shall not limit the right of a line 34 defendant to waive the right to be present in accordance with line 35 Section 977.
line 36 (e) (1) For purposes of subdivision (b), a preliminary hearing line 37 shall be deemed to have commenced in the presence of the line 38 defendant if the court finds, by clear and convincing evidence, all line 39 of the following to be true:
96 — 17 — SB 99
line 1 (A) The defendant is in custody and is refusing, without good line 2 cause, to appear in court on that day for that preliminary hearing. line 3 (B) The defendant has been informed of their right and line 4 obligation to be personally present in court.
line 5 (C) The defendant has been informed that the preliminary line 6 hearing will proceed without the defendant being present. line 7 (D) The defendant has been informed that they have the right line 8 to remain silent during the preliminary hearing. line 9 (E) The defendant has been informed that their absence without line 10 good cause will constitute a voluntary waiver of any constitutional line 11 or statutory right to confront any witnesses against them or to line 12 testify on their own behalf.
line 13 (F) The defendant has been informed whether or not defense line 14 counsel will be present.
line 15 (2) The court shall state on the record the reasons for the court’s line 16 findings and shall cause those findings and reasons to be entered line 17 into the minutes.
line 18 (3) If the preliminary hearing lasts for more than one day, the line 19 court is required to make the findings required by this subdivision line 20 anew for each day that the defendant is absent. line 21 (4) This subdivision does not apply to any preliminary hearing line 22 in which the defendant was personally present in court at the line 23 commencement of the preliminary hearing.
line 24 (f) This section shall become operative on January 1, 2028.
O
96 SB 99 — 18 —
Attachment 2
1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org July 24, 2024
The Honorable Tom Umberg
Member, California State Senate
1021 O Street, Room 6530
Sacramento, CA 95814
RE: SB 99 (Umberg) Law enforcement agencies: military equipment.
Notice of OPPOSITION (As Amended on June 10, 2024)
Dear Senator Umberg,
The League of California Cities (Cal Cities) regretfully must oppose your bill, SB 99 which would add a requirement that a governing body, when considering whether to approve a proposed military equipment use policy submitted by a law enforcement agency, determine that the United States Armed Forces has not been prohibited by federal law or regulation from purchasing the military equipment from the manufacturer or seller of the military equipment.
This bill would prohibit law enforcement agencies and cities from being able to purchase equipment that are currently prohibited by the federal government, which has the effect of prohibiting the purchase of drones made by DJI which is based in China. This prohibition would prevent the acquisition and use of drones that comprise a huge portion of the current market.
Drone programs have been very effective at improving officer and community safety and many cities have utilized this technology. While we understand that the author will be taking amendments to the bill to delay the implementation and continue to use the drones that have already been purchased, Cal Cities continues to have concerns about the ability of cities to purchase and use this vital equipment that is also very cost effective and the best available technology on the market.
While we have been discussing the proposed amendments with your staff, as the bill is currently written, it would prohibit the purchase of drones and Cal Cities is opposed to legislation that bans drones or places limits on local control.
For these reasons, Cal Cities opposes SB 99. If you have any questions, do not hesitate to contact me at [email protected].
Sincerely,
Jolena Voorhis
Legislative Affairs, Lobbyist
cc: Members, Assembly Appropriations Committee
Attachment 3
Officers
President
Don Barnes
Sheriff, Orange County
1st Vice President
Brandon Barnes
Sheriff, Sutter County
2nd Vice President
Chad Bianco
Sheriff, Riverside County
Secretary
Ian Parkinson
Sheriff, San Luis Obispo County
Treasurer
Shannan Moon
Sheriff, Nevada County
Sergeant-at-Arms
Jim Cooper
Sheriff, Sacramento County
Immediate Past President
Mike Boudreaux
Sheriff, Tulare County
Directors
Ingrid Braun
Sheriff, Mono County
Shannon Dicus
Sheriff, San Bernardino County
Jeff Dirkse
Sheriff, Stanislaus County
Tom Ferrara
Sheriff, Solano County
Billy Honsal
Sheriff, Humboldt County
Oscar Ortiz
Sheriff, Napa County
Patrick Withrow
Sheriff, San Joaquin County
Presidents’ Counsel
Bill Brown
Sheriff, Santa Barbara County
Kory Honea
Sheriff, Butte County
David Livingston
Sheriff, Contra Costa County
David Robinson
Sheriff, Kings County
Donny Youngblood
Sheriff, Kern County
M. Carmen Green
Executive Director
James R. Touchstone
General Counsel
Cory Salzillo
Legislative Director
Organization Founded by the Sheriffs in 1894
California State Sheriffs’ Association
1231 I Street, Ste 200 Sacramento, California 95814
Telephone 916.375.8000 Fax 916.375.8017 Website www.calsheriffs.org Email [email protected] June 27, 2024
The Honorable Thomas Umberg
California State Senate
1021 O Street, Suite 6530
Sacramento, CA 95814
Subject: SB 99 – Oppose
Dear Senator Umberg:
On behalf of the California State Sheriffs’ Association (CSSA), I regret to inform you that we are opposed to your measure, Senate Bill 99, which would add a requirement that a governing body, when considering whether to approve a proposed military equipment use policy submitted by a law enforcement agency, determine that the United States Armed Forces has not been prohibited by federal law or regulation from purchasing the military equipment from the manufacturer or seller of the military equipment.
We understand the stated concerns regarding data security, but the net effect of the measure will be to prohibit law enforcement’s use of certain technology, despite any security measures and data guidelines that may be in place. Specifically, this bill appears to target unmanned aerial vehicles or drones that are manufactured in certain foreign countries. The standards for technology use by the military are not necessarily the same as standards for law enforcement use but this bill conflates them.
The effect of this bill will be to prohibit law enforcement’s acquisition and use of drones that comprise a huge portion of the current market. Local governments that use impacted drones will be forced to acquire new technology that is considerably more expensive than a lot of what is currently in use, train their staffs to use it, and likely suffer from a lack of product and feature diversity. For law enforcement agencies, this translates into difficulty completing their missions at much higher prices with threats to public safety.
For these reasons, CSSA is respectfully opposed to SB 99.
Sincerely,
Cory Salzillo
Legislative Director
cc: Members and Staff of the Assembly Public Safety Committee Gary Olson, Republican Consultant