                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.




                                      1                                 98-1005
                                              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.

                                                     2                                   98-1005
       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:

                                                            3                                                         98-1005
              “(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

                                                            4                                                         98-1005
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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