Bill Text: CA AB447 | 2009-2010 | Regular Session | Introduced
Bill Title: Criminal procedure: trial counsel: defendant: inability
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2010-02-02 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB447 Detail]
Download: California-2009-AB447-Introduced.html
BILL NUMBER: AB 447 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Nestande
FEBRUARY 24, 2009
An act to amend Sections 987, 987.4, 987.8, and 987.81 of the
Penal Code, relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 447, as introduced, Nestande. Criminal procedure: trial
counsel: defendant: inability to pay.
Existing law requires a court to assign counsel to a defendant if
the defendant desires the assistance of counsel and cannot afford to
pay for counsel. Under existing law, the court is authorized to
require a person requesting counsel to fill out a form, under penalty
of perjury, or hold a hearing at various points in the criminal
proceeding to determine whether the defendant has the ability to pay
for assigned counsel, as specified.
This bill would, instead, require the court to have the person
fill out the form. This bill would also require the court to hold a
hearing to determine whether a defendant has the ability to pay for
assigned counsel, as specified.
Because this bill would expand the application of a crime, it
would impose a state-mandated local program.
Existing law authorizes a court to order the parent or guardian of
a minor in a criminal proceeding to pay for any public
representation to the extent that the court determines that the
parent or guardian can pay that expense.
This bill would require the court to order that payment to the
extent the parent or guardian can pay for it.
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 no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 987 of the Penal Code is amended to read:
987. (a) In a noncapital case, if the defendant appears for
arraignment without counsel, he or she shall be informed by the court
that it is his or her right to have counsel before being arraigned,
and shall be asked if he or she desires the assistance of counsel. If
he or she desires and is unable to employ counsel the court shall
assign counsel to defend him or her.
(b) In a capital case, if the defendant appears for arraignment
without counsel, the court shall inform him or her that he or she
shall be represented by counsel at all stages of the preliminary and
trial proceedings and that the representation is at his or her
expense if he or she is able to employ counsel or at public expense
if he or she is unable to employ counsel, inquire of him or her
whether he or she is able to employ counsel and, if so, whether he or
she desires to employ counsel of his or her choice or to have
counsel assigned, and allow him or her a reasonable time to send for
his or her chosen or assigned counsel. If the defendant is unable to
employ counsel, the court shall assign counsel to defend him or her.
If the defendant is able to employ counsel and either refuses to
employ counsel or appears without counsel after having had a
reasonable time to employ counsel, the court shall assign counsel.
The court shall at the first opportunity inform the defendant's
trial counsel, whether retained by the defendant or court-appointed,
of the additional duties imposed upon trial counsel in any capital
case as set forth in paragraph (1) of subdivision (b) of Section
1240.1.
(c) In order to assist the court in determining whether a
defendant is able to employ counsel in any case, the court
may shall require a defendant to file
a financial statement or other financial information under penalty
of perjury with the court or, in its discretion, order a defendant to
appear before a county officer designated by the court to make an
inquiry into the ability of the defendant to employ his or her own
counsel. If a county officer is designated, the county officer shall
provide to the court a written recommendation and the reason or
reasons in support of the recommendation. The determination by the
court shall be made on the record. Except as provided in Section
1214, the financial statement or other financial information obtained
from the defendant shall be confidential and privileged and shall
not be admissible in evidence in any criminal proceeding except the
prosecution of an alleged offense of perjury based upon false
material contained in the financial statement. The financial
statement shall be made available to the prosecution only for
purposes of investigation of an alleged offense of perjury based upon
false material contained in the financial statement at the
conclusion of the proceedings for which the financial statement was
required to be submitted. The financial statement and other financial
information obtained from the defendant shall not be confidential
and privileged in a proceeding under Section 987.8.
(d) In a capital case, the court may appoint an additional
attorney as a cocounsel upon a written request of the first attorney
appointed. The request shall be supported by an affidavit of the
first attorney setting forth in detail the reasons why a second
attorney should be appointed. Any affidavit filed with the court
shall be confidential and privileged. The court shall appoint a
second attorney when it is convinced by the reasons stated in the
affidavit that the appointment is necessary to provide the defendant
with effective representation. If the request is denied, the court
shall state on the record its reasons for denial of the request.
(e) This section shall become operative on January 1, 2000.
SEC. 2. Section 987.4 of the Penal Code is amended to read:
987.4. When the public defender or an assigned counsel represents
a person who is a minor in a criminal proceeding, at the expense of
a county, the court may shall order the
parent or guardian of such the minor to
reimburse the county for all or any part of such
that expense, if it determines that the parent or guardian
has the ability to pay such that
expense.
SEC. 3. Section 987.8 of the Penal Code is amended to read:
987.8. (a) Upon a finding by the court that a defendant is
entitled to counsel but is unable to employ counsel, the court
may shall hold a hearing or, in its
discretion, order the defendant to appear before a county officer
designated by the court, to determine whether the defendant owns or
has an interest in any real property or other assets subject to
attachment and not otherwise exempt by law. The court may impose a
lien on any real property owned by the defendant, or in which the
defendant has an interest to the extent permitted by law. The lien
shall contain a legal description of the property, shall be recorded
with the county recorder in the county or counties in which the
property is located, and shall have priority over subsequently
recorded liens or encumbrances. The county shall have the right to
enforce its lien for the payment of providing legal assistance to an
indigent defendant in the same manner as other lienholders by way of
attachment, except that a county shall not enforce its lien on a
defendant's principal place of residence pursuant to a writ of
execution. No lien shall be effective as against a bona fide
purchaser without notice of the lien.
(b) In any case in which a defendant is provided legal assistance,
either through the public defender or private counsel appointed by
the court, upon conclusion of the criminal proceedings in the trial
court, or upon the withdrawal of the public defender or appointed
private counsel, the court may shall ,
after notice and a hearing, make a determination of the present
ability of the defendant to pay all or a portion of the cost thereof.
The court may, in its discretion, hold one such
additional hearing within six months of the conclusion of the
criminal proceedings. The court may, in its discretion, order the
defendant to appear before a county officer designated by the court
to make an inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided.
(c) In any case in which the defendant hires counsel replacing a
publicly provided attorney; in which the public defender or appointed
counsel was required by the court to proceed with the case after a
determination by the public defender that the defendant is not
indigent; or, in which the defendant, at the conclusion of the case,
appears to have sufficient assets to repay, without undue hardship,
all or a portion of the cost of the legal assistance provided to him
or her, by monthly installments or otherwise; the court shall make a
determination of the defendant's ability to pay as provided in
subdivision (b), and may, in its discretion, make other orders as
provided in that subdivision.
This subdivision shall be operative in a county only upon the
adoption of a resolution by the board of supervisors to that effect.
(d) If the defendant, after having been ordered to appear before a
county officer, has been given proper notice and fails to appear
before a county officer within 20 working days, the county officer
shall recommend to the court that the full cost of the legal
assistance shall be ordered to be paid by the defendant. The notice
to the defendant shall contain all of the following:
(1) A statement of the cost of the legal assistance provided to
the defendant as determined by the court.
(2) The defendant's procedural rights under this section.
(3) The time limit within which the defendant's response is
required.
(4) A warning that if the defendant fails to appear before the
designated officer, the officer will recommend that the court order
the defendant to pay the full cost of the legal assistance provided
to him or her.
(e) At a hearing, the defendant shall be entitled to, but shall
not be limited to, all of the following rights:
(1) The right to be heard in person.
(2) The right to present witnesses and other documentary evidence.
(3) The right to confront and cross-examine adverse witnesses.
(4) The right to have the evidence against him or her disclosed to
him or her.
(5) The right to a written statement of the findings of the court.
If the court determines that the defendant has the present ability
to pay all or a part of the cost, the court shall set the amount to
be reimbursed and order the defendant to pay the sum to the county in
the manner in which the court believes reasonable and compatible
with the defendant's financial ability. Failure of a defendant who is
not in custody to appear after due notice is a sufficient basis for
an order directing the defendant to pay the full cost of the legal
assistance determined by the court. The order to pay all or a part of
the costs may be enforced in the manner provided for enforcement of
money judgments generally but may not be enforced by contempt.
Any order entered under this subdivision is subject to relief
under Section 473 of the Code of Civil Procedure.
(f) Prior to the furnishing of counsel or legal assistance by the
court, the court shall give notice to the defendant that the court
may shall , after a hearing, make a
determination of the present ability of the defendant to pay all or a
portion of the cost of counsel. The court shall also give notice
that, if the court determines that the defendant has the present
ability, the court shall order him or her to pay all or a part of the
cost. The notice shall inform the defendant that the order shall
have the same force and effect as a judgment in a civil action and
shall be subject to enforcement against the property of the defendant
in the same manner as any other money judgment.
(g) As used in this section:
(1) "Legal assistance" means legal counsel and supportive services
including, but not limited to, medical and psychiatric examinations,
investigative services, expert testimony, or any other form of
services provided to assist the defendant in the preparation and
presentation of the defendant's case.
(2) "Ability to pay" means the overall capability of the defendant
to reimburse the costs, or a portion of the costs, of the legal
assistance provided to him or her, and shall include, but not be
limited to, all of the following:
(A) The defendant's present financial position.
(B) The defendant's reasonably discernible future financial
position. In no event shall the court consider a period of more than
six months from the date of the hearing for purposes of determining
the defendant's reasonably discernible future financial position.
Unless the court finds unusual circumstances, a defendant sentenced
to state prison shall be determined not to have a reasonably
discernible future financial ability to reimburse the costs of his or
her defense.
(C) The likelihood that the defendant shall be able to obtain
employment within a six-month period from the date of the hearing.
(D) Any other factor or factors which may bear upon the defendant'
s financial capability to reimburse the county for the costs of the
legal assistance provided to the defendant.
(h) At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the rendering court to modify
or vacate its previous judgment on the grounds of a change in
circumstances with regard to the defendant's ability to pay the
judgment. The court shall advise the defendant of this right at the
time it renders the judgment.
(i) This section shall apply to all proceedings, including
contempt proceedings, in which the party is represented by a public
defender or appointed counsel.
SEC. 4. Section 987.81 of the Penal Code is amended to read:
987.81. (a) In any case in which a defendant is provided legal
assistance, either through the public defender or private counsel
appointed by the court, upon conclusion of the criminal proceedings
in the trial court, or upon the withdrawal of the public defender or
appointed private counsel, the court shall consider the available
information concerning the defendant's ability to pay the costs of
legal assistance and may shall , after
notice, as provided in subdivision (b), hold a hearing to make a
determination of the present ability of the defendant to pay all or a
portion of the cost thereof. Notwithstanding the above, in
In any case where the court has ordered the
probation officer to investigate and report to the court pursuant to
subdivision (b) of Section 1203, the court may
shall hold such a hearing. The court may, in its
discretion, hold one such additional hearing
within six months of the conclusion of the criminal proceedings.
(b) Concurrent with the furnishing of counsel or legal assistance
by the court, the court shall order the defendant to appear before a
county officer designated by the court to make an inquiry into the
ability of the defendant to pay all or a portion of the legal
assistance provided. Prior to the furnishing of counsel or legal
assistance by the court, the court shall give notice to the defendant
that the court shall, after a hearing, make a determination of the
present ability of the defendant to pay all or a portion of the cost
of counsel. The court shall also give notice that, if the court
determines that the defendant has the present ability, the court
shall order him or her to pay all or a part of the cost. The notice
shall inform the defendant that the order shall have the same force
and effect as a judgment in a civil action and shall be subject to
enforcement against the property of the defendant in the same manner
as any other money judgment.
(c) The provisions of this section shall apply only in a county in
which the board of supervisors adopts a resolution which elects to
proceed under this section.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
