People v. Amor

• Decision Date: 09 July 1974
• Docket Number: Cr. 17473
• Citation: 114 Cal.Rptr. 765,12 Cal.3d 20,523 P.2d 1173
• Court: California Supreme Court
• Parties: , 523 P.2d 1173 The PEOPLE, Plaintiff and Respondent, v. Joan Diane AMOR, Defendant and Appellant. In Bank

Page 765

114 Cal.Rptr. 765

12 Cal.3d 20, 523 P.2d 1173

The PEOPLE, Plaintiff and Respondent, v. Joan Diane AMOR, Defendant and Appellant.

Cr. 17473.

Supreme Court of California,

In Bank.

July 9, 1974.

Rehearing Denied Aug. 7, 1974.

Richard S. Buckley, Public Defender, Harold E. Shabo, Howard Price and Herbert M. Barish, Deputy Public Defenders, for defendant and appellant.

Charles C. Marson, Joseph Remcho, San Francisco, Peter E. Sheehan, Deborah J. B. Hinkel, Berkeley, Toby Sherwood, Palo Alto, Terry J. Hatter, Jr., Philip L. Goar and Fred Okrand, Los Angeles, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., and Jack R. Winkler, Chief Asst. Attys. Gen., William E. James and S. Clark Moore, Asst. Attys. Gen., Howard J. Schwab and Russell Iungerich, Deputy Attys. Gen., for plaintiff and respondent.

Robert G. Berrey, County Counsel, and Lloyd M. Harmon, Jr., Deputy County Counsel, San Diego, as amici curiae on behalf of plaintiff and respondent.

McCOMB, Justice.

Defendant appeals from an order requiring her to pay the County of Los Angeles the sum of $50 for services of counsel appointed to represent her in a criminal prosecution.

Facts: Defendant was charged with the crime of felony hit and run, in violation of section 20001 of the Vehicle Code. On July 19, 1972, the public defender was appointed to represent her, and she at that time signed an acknowledgment that she had received a written 'Notice of Responsibility for Payment of Appointed Counsel and Right to Hearing (987.8 Penal Code of California).'

Defendant pleaded not guilty; and by stipulation the case was submitted on the transcript of the preliminary hearing, with the understanding that she would be found guilty of violating section 21801 of the Vehicle Code, a lesser included offense. On November 9, 1972, defendant was given a suspended 30-day jail sentence and placed on probation for one year on condition that she pay a $125 fine and a $35 penalty assessment. Of the $160, $50 was to be paid immediately and the balance in 60 days, probation to terminate of full payment.

On December 12, 1972, defendant executed a financial statement showing that she was employed as a legal secretary at a salary of $650 per month, was paying $195 per month rent, and owed $50 on her 1962 Oldsmobile, $415 on five charge accounts, and $160 on her fine and penalty. Ten days later, on December 21, the court held a hearing, at which it found that the reasonable value of the public defender's services was $100 and that defendant had the financial ability to pay $50. The court, accordingly, ordered defendant to pay $50 within 60 days, under section 987.8 of the Penal Code.

Section 987.8 provides that upon the conclusion of a criminal proceeding in which the defendant was furnished counsel, the trial court shall determine the defendant's 'present ability' to pay all or part of the cost of counsel and shall order reimbursement in accordance with any affirmative finding of ability to pay. The order may be enforced by execution as on a civil judgment but not by contempt. ¹

Questions: First. Does section 987.8 of the Penal Code place an unconstitutional burden on the right to counsel in criminal proceedings?

No. Defendant contends that section 987.8 is unconstitutional, on the ground that it has a chilling effect upon an accused's right to counsel. She argues that a deprivation of the trial to counsel may result, because the possibility under the statute that a defendant will be ordered to pay all or part of his counsel fees may cause him to decline counsel rather than run the risk of being required to pay counsel fees in an unknown amount. Under this theory, however, any defendant, indigent or not indigent, who elected to enter a guilty plea in order to save counsel fees would have been deprived of his right to counsel. If such a theory were sound, it would result in the practical elimination of the fee system with respect to the defense of criminal prosecutions.

In urging her contention, defendant relies principally upon In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143. In Allen, this court held that probation may not be conditioned on a requirement that the defendant reimburse the county for the services of court--appointed counsel. Allen however, is distinguishable from the present case. In Allen, there is justification for concluding that the petitioner would have been penalized for exercising a constitutional right, because not only would she have been liable for payment of the entire fee paid to counsel for representing her, without a finding that she had the financial ability to make payment and with no warning that she might be held so liable, but she could have been imprisoned if she failed to pay the fee, payment thereof being one of the conditions of her probation.

Here, on the other hand, the defendant, who had been forwarned that she might be held liable for payment of the fee for her appointed counsel, or part of it, was ordered to pay only that part which the court determined she had the financial ability to pay; and under the statute, since execution was issuable only as on a judgment in a civil action, she could not have been imprisoned for nonpayment. (Cal.Const., art. I, § 15.)

In In re Ricky H., 2 Cal.3d 513, 86 Cal.Rptr. 76, 468 P.2d 204, we distinguished the matter there involved from Allen, saying at page 524(11b), 86 Cal.Rptr. at page 82, 468 P.2d at page 210: 'The considerations which impelled us to strike down the probation condition in Allen do not require us to invalidate section 903.1 (Welf. & Inst.Code). Unlike the petitioner in Allen, petitioner herein (a minor) was advised in advance that his father could be charged with the cost of appointed counsel, and petitioner does not claim that the fee involved was unreasonable or excessive. Moreover, in the instant case no unfair or unnecessary threat was made to withhold probation or other privileges unless counsel fees were reimbursed.' The same factors are here applicable.

Additionally, determination of the conditions of probation constitutes part of the sentencing process. In Allen, therefore, the order directing the petitioner to reimburse the county for the cost of counsel fees was made as part of the sentencing process. As pointed out by this court in Allen, '(T)he introduction of budgeting considerations could well divert or dilute the attention which the judge must give to the specific considerations which the law requires him to have in mind in the sentencing process.' (P. 394 of 71 Cal.2d, p. 210 of 78 Cal.Rptr. p. 146 of 455 P.2d.) The determination in the present case, however, was made only after conclusion of the criminal proceedings. Hence, any consideration to 'budgeting' would not have occurred until the sentencing process had been completed.

There is no more reason to suppose that an indigent defendant will refuse counsel because he may later be ordered to pay his counsel fees, to the extent it is determined he has the financial ability to do so at the conclusion of the criminal proceedings, than there is to suppose that some defendants who are not indigent will refuse counsel because of an unwillingness to incur a counsel fee. It is quite possible that a defendant who would not qualify as an indigent may have such limited resources, or restrict himself to such an extent with respect to the expenditure of his funds, that the factor of liability for counsel fees might prompt him, in a case where counsel is not required, to enter a guilty plea in order to save counsel fees; but if the elects to enter a guilty plea for that reason, such election, based largely on economic factors, could nevertheless not be said to result in his being deprived of the right to counsel. The option to be represented by counsel would have been his, with the right to give such priority as he wished to the economic or other factors involved.

The principle of recoupment for the cost of providing court-appointed counsel has been approved by the Supreme Court of the United States, which in Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577, stated, 'We may assume that a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.'

Likewise, in James v. Strange, 407 U.S. 128, 141, 92 S.Ct. 2027, 2034, 32 L.Ed.2d 600, it is said: 'We note here also that the state interests represented by recoupment laws may prove important ones. Recoupment proceedings may protect the State from fraudulent concealment of assets and false assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has required appointed counsel for indigents in widening classes of cases and stages of prosecution. Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs. Finally, federal dominance of the Nation's major revenue sources has encouraged State and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents' counsel fees but of other forms of public assistance as well.'

Recoupment statutes have been declared unconstitutional if they arbitrarily discriminate against indigents as a class (James v. Strange, supra, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600) or against a subclass such as indigents sentenced to state prison (Rinaldi v. Yeager, supra, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577). No such infirmity, however, exists with respect to the subject statute.

Finally, we note that any question as to the validity of section 987.8 under the United States Constitution, at least as applied to convicted defendants, was laid to rest in the recent decision of the United States Supreme Court in Fuller v. Oregon (1974), --- U.S. ---, 94 S.Ct. 2116, 40 L.Ed.2d 642.

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