Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
:
OPINION : No. 98-1005
:
of : December 29, 1998
:
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
THE HONORABLE ANN MILLER RAVEL, COUNTY COUNSEL,
COUNTY OF SANTA CLARA, has requested an opinion on the following question:
May a county maintain by electronic means a docket in the criminal
proceedings of all trial courts within the county?
CONCLUSION
A county may maintain by electronic means a docket in the criminal
proceedings of all trial courts within the county.
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ANALYSIS
We are asked whether a county may maintain electronically a criminal docket
for all trial courts, including the superior court, of the county. A criminal docket contains
the title of each criminal action or proceeding filed in the court and a listing of all court
orders for each action or proceeding. (Pen. Code, § 1428.) We conclude that a county has
statutory authority to maintain electronically a criminal docket for all its trial courts.
A county possesses and can exercise only such powers as are granted to it by
the Constitution or by statute, together with those powers as arise by necessary implication
from those expressly granted. (Gov. Code, § 23003; Byers v. Board of Supervisors (1968)
262 Cal. App. 2d 148, 157; 78 Ops.Cal.Atty.Gen. 171, 180 (1995).)1 In determining whether
a county has the authority in question, we first examine the historical sequence of statutory
enactments pertaining to criminal docketing. Penal Code section 1428, first enacted in 1872
and last amended in 1961 (Stats. 1961, ch. 731, § 1), provides as follows:
“A docket must be kept by the judge or clerk of each justice court and
by the clerk of each municipal court having jurisdiction of criminal actions or
proceedings, in which must be entered the title of each criminal action or
proceeding and under each title all the orders and proceedings in such action
or proceeding. Wherever by any other section of this code made applicable
to such courts an entry of any judgment, order or other proceeding in the
minutes is required, an entry thereof in the docket shall be made and shall be
deemed a sufficient entry in the minutes for all purposes.”
Former Penal Code section 1428.4, enacted in 1973 (Stats. 1973, ch. 320, § 1) and repealed
in 1980 (Stats. 1980, ch. 354, § 8), stated:
“In lieu of maintaining the docket required by Section 1428, the judge
or clerk of each justice court and the clerk of each municipal court may
maintain a docket of actions by means of photographing, microphotographing,
or mechanically or electronically storing the whole content of all papers and
records, or any portion thereof as will constitute a memorandum, necessary to
the keeping of a docket of actions so long as the completeness and
chronological sequence of the docket are not disturbed.
“All such reproductions shall be placed in convenient, accessible files,
1
All references hereafter to the Government Code are by section number only.
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and provision shall be made for preserving, examining and using them.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.”
At the time of its repeal, former Penal Code section 1428.4 was replaced by former section
71007 (Stats. 1980, ch. 354, § 2), which provided until its repeal in 1994 (Stats. 1994, ch.
1030, § 11) as follows:
“(a) In lieu of maintaining the docket or register of actions required by
Section 1428 of the Penal Code and Section 1052 of the Code of Civil
Procedure, the judge or clerk of each justice court and the clerk of each
municipal court may maintain a docket or register of actions by means of
photographing, microphotographing, or mechanically or electronically storing
the whole content of all papers and records, or any portion thereof as will
constitute a memorandum, necessary to the keeping of a docket or register of
actions so long as the completeness and chronological sequence of the record
are not disturbed.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
....
“(b) Upon making reproductions of court records as described in
subdivision (a), the originals may be destroyed. The reproduction shall be
deemed to be an original record.
“(c) All photographs, microphotographs, microfilms, or mechanically
or electronically stored court records shall be properly indexed and kept in
convenient, accessible files. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.”
Accordingly, both former Penal Code section 1428.4 and section 71007 referred specifically
to the dockets of justice and municipal courts. They did not pertain to the records of superior
courts. The clerks of superior courts were thus not authorized to maintain electronically the
records in question under the terms of these repealed statutes.
However, when former section 71007 was repealed in 1994, it was replaced
by section 68150 (Stats. 1994, ch. 1030, § 1), and as amended in 1996 (Stats. 1996, ch. 1159,
§ 13), section 68150 now provides:
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“(a) Trial court records may be preserved in any form of
communication or representation, including optical, electronic, magnetic,
microgaphic, or photographic media or other technology capable of accurately
producing or reproducing the original record according to minimum standards
or guidelines for the preservation and reproduction of the medium adopted by
the American National Standards Institute or the Association for Information
and Image Management.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
“(b) No additions, deletions, or changes shall be made to the content of
the record. The records shall be indexed for convenient access.
“(c) A copy of the record preserved or reproduced according to
subdivisions (a) and (b) shall be deemed the original court record and may be
certified as a correct copy of the original record.
“(d) A court record preserved or reproduced in accordance with
subdivisions (a) and (b) shall be stored in a manner and in a place that
reasonably assures its preservation against loss, theft, defacement, or
destruction for the prescribed retention period under Section 68152. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
“(g) Instructions for access to data stored on a medium other than paper
shall be documented. Each court shall conduct a periodic review of the media
in which the court records are stored to assure that the storage medium is not
obsolete and that current technology is capable of accessing and reproducing
the records. . . .
“(h) Court records preserved or reproduced under subdivisions (a) and
(b) shall be made reasonably accessible to all members of the public for
viewing and duplication as would the paper records. Reasonable provision
shall be made for duplicating the records at cost. Cost shall consist of all costs
associated with duplicating the records as determined by the court.”
Hence, the “electronic preservation” of “trial court records” is currently authorized by
section 68150. The term “court record” includes the criminal docket. (§ 68151, subds.
(a)(3), (j)(17).) The reference in section 68150 to “trial court” records, in lieu of the records
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of justice and municipal courts in the predecessor statute, includes the records of the superior
court. We note that the principal trial court in this state is the superior court. (Whittaker v.
Superior Court (1968) 68 Cal. 2d 357, 362.) Finally, from the statutory history it is evident
that the Legislature has used the terms “kept” (Webster’s Third New Internat. Dict. (1971)
p. 1235), “maintain” (id., at p. 1362) , and “preserved” (id., at p. 1794) interchangeably to
include the original entry of the information as a record. Subdivision (a) of section 68150,
for example, refers to records being “preserved” by “technology capable of accurately
producing . . . the original record . . . .”
We conclude that a county may maintain by electronic means a docket in the
criminal proceedings of all trial courts within the county. Of course, any additional
requirements prescribed by law (e.g., §§ 68150, subd. (f), 68152, subd. (e)(1), 68152, subd.
(j)(17)) [capital felony cases]) must be met in the specified circumstances.
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