California Assembly Bill AB447 Latest Draft

 BILL NUMBER: AB 447INTRODUCED 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.