People v. Lewis

• Decision Date: 13 September 1971
• Docket Number: Cr. 20427
• Citation: 97 Cal.Rptr. 419,19 Cal.App.3d 1019
• Parties: The PEOPLE, Plaintiff and Respondent, v. Harvey LEWIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 419

97 Cal.Rptr. 419

19 Cal.App.3d 1019

The PEOPLE, Plaintiff and Respondent, v. Harvey LEWIS, Defendant and Appellant.

Cr. 20427.

Court of Appeal, Second District, Division 5, California.

Sept. 13, 1971.

Jeannette Christy, Hollywood, for defendant and appellant.

Roger Arnebergh, City Atty., and Howard Fox, Deputy City Atty., for plaintiff and respondent.

STEPHENS, Acting Presiding Justice.

By misdemeanor complaint in two counts filed in the Los Angeles Municipal Court, defendant was charged in Count I with violation of Penal Code section 148 (resisting, delaying and obstructing a public officer in the attempted discharge of his duties), and in Count II, with violation of Penal Code section 415 (disturbing the peace). Defendant pleaded not guilty and after a jury trial was found guilty as charged. After the filing of a formal probation report, defendant was sentenced on each count to pay a fine, or to serve a specified number of days in county jail. An appeal was taken to the Appellate Department of the Superior Court, which affirmed the judgment (People v. Lewis, No. CR A 9645). Defendant then moved in the trial court for a stay of execution on the ground of indigency. After a hearing, the motion was denied and the previously imposed sentence was declared to be in full force and effect. Defendant then appealed to the Superior Court Appellate Department from the post judgment order denying relief. He also filed a petition for writ of habeas corpus and posted bond. The Appellate Department affirmed the order and on its own motion certified the appeal to this court pursuant to Rule 63(a) and (c), California Rules of Court, to settle new and important questions of law, and we accepted the transfer.

The questions so presented are:

(1) What constitutes indigency of a defendant under the ruling of In re Antazo (1970) 3 Cal.3d 100, 89 Cal.Rptr. 255, 473 P.2d 999, that an indigent defendant cannot constitutionally be imprisoned for nonpayment of a fine?

(2) Where the fact of indigency has been decided by the trial judge, does the appellate court reexamine the question de novo, or do the usual rules for reviewing a trial court's determination of fact apply?

We agree with the conclusions and reasoning set forth in the opinion by Presiding Judge James G. Whyte concurred in by associate judges Martin Katz and Delbert E. Wong of the Appellate Department affirming the judgment; we therefore adopt that opinion here as our own:

'In re Antazo (1970) 3 Cal.3d 100 (89 Cal.Rptr. 255, 473 P.2d 999) establishes the rule that an indigent defendant cannot constitutionally be imprisoned for nonpayment of a fine. (See also Williams v. Illinois (1970) 399 U.S. 235 (26 L.Ed.2d 586, 90 S.Ct. 2018); Tate v. Short (1971) 39 U.S. Law Week 4301 (401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130).) In all of these cases, the fact of defendant's indigency was conceded.

'In the case at bench, defendant was sentenced (on Count I to pay a fine of $450 with an alternative of 45 days in jail, and on Count II, to pay a fine of $25 with an alternative of two days in jail) on April 20, 1970. The judgment was affirmed on October 29, 1970 (Cr.A. 9645). No Antazo problems were raised on this appeal.

'When the remittitur had been returned and the defendant was called into the trial court to satisfy the judgment, he made a motion to stay the alternative jail sentences on the ground that he was an indigent and therefore came under the Antazo rule. The trial court held a hearing and made an express finding 'that the defendant is not an indigent at this time and was not an indigent at the time of sentence on April 20, 1970.' The court then reimposed the original sentence.

'Defendant has again appealed, this time expressly limiting his appeal to that portion of the judgment which held he 'was not an indigent person as defined in In re Antazo, 3 Cal.3d 100 (89 Cal.Rptr. 255, 473 P.2d 999).'

' The cases referred to above make it clear that the rule announced, i.e., against imprisonment for nonpayment, applies only to indigents. In Antazo, the court said, 'We have no doubt that this practice may properly be used to compel payment of fines in proper cases.' (3 Cal.3d 100 at 114 (89 Cal.Rptr. 255, 473 P.2d 999).) In Tate v. Short, Supra, Justice Brennan, speaking for the court, said, 'We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.' (39 U.S. Law Week 4301 at 4303 (401 U.S. 395 at 400, 91 S.Ct. 668 at 672, at 28 L.Ed.2d 130 at ---).)

'This leaves for determination two issues. What is indigency as used in Antazo? How is the fact of indigency determined? It is not strange that, the basic rule having been so recently established, we find no authoritative answer to either question.

'Williams refers to 'any individual who, by definition, is without funds.' (399 U.S. 235 at 242 (90 S.Ct. 2018, 26 L.Ed.2d 586).) However, the words 'without funds' cannot be taken literally. A man with $500 in his pocket is not without funds, yet if he has no other property or source of income, he is just as unable to pay the second $500 of a $1,000 fine as a man with nothing is unable to pay a total fine of $500. ¹

'In the field of appointment of counsel, we have some discussions of the meaning of indigency. In Williams v. Superior Court (1964) 226 Cal.App.2d 666 672 (38 Cal.Prtr. 291), the court quotes with approval from 13 Stanford Law Review (at p. 545): 'The standard applied is flexible and contemplates consideration of such factors as amount of income, bank accounts, ownership of a home or car, outstanding debts, the number of dependents and the seriousness of the charge.' In People v. Ferry (1965) 237 Cal.App.2d (880) 881 (47 Cal.Rptr. 324), the same language appears.

'While indigency as to payment of a fine involves somewhat different considerations, we can paraphrase these holdings and say: The standard to be applied is a flexible one and contemplates such factors as amount of income, bank accounts, ownership of a home, car, or other property, tangible or intangible, the number of dependents, the cost of sustenance for defendant and his dependents, and the amount of the fine.

'Nor do we feel that indigency as to payment of a fine is an all or nothing proposition. Penal Code section 1205 provides that in misdemeanor cases, 'a judgment that the defendant pay a fine may also direct that he pay the fine within a limited time or in installments on specified dates and that in default of payment as therein stipulated he be imprisoned in the discretion of the court either until the defaulted installment is satisfied or until the fine is satisfied in full.' ²

' We hold that for the purpose of applying the rule of Antazo, indigency is a fact to be determined like any other fact, and that it may be total or partial and, if partial, may be of indefinite duration or temporary.

' We also feel that the original determination of this fact should be for the trial judge. Trial judges are in the best position administratively to determine these matters. (See Williams v. Superior Court, Supra, 226 Cal.App.2d 666 at 672 (38 Cal.Rptr. 291); Morris v. Schoonfield (1969) 301 F.Supp. 158 (vacated on other grounds, 399 U.S. 508 (90 S.Ct. 2232), 26 L.Ed. 2773); State v. MacGregor (1968) 5...