CERTIFIED FOR PARTIAL PUBLICATION *
Defendant was convicted of the second degree murder of her husband following a trial at which she acted as her own attorney. The husband's body had been found in a cottage at their home, stabbed repeatedly. Defendant admitted the stabbing but testified she acted in self-defense.
Defendant argues the trial court should have dismissed the jury panel after the prosecution was unable to explain its peremptory challenge of a female juror, erred in failing to give an instruction on heat of passion voluntary manslaughter, and should not have admitted her statements to police, which were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). In addition, defendant contends the court, prosecutor, and jury committed prejudicial misconduct in the course of the trial. Finding no prejudicial error, we affirm the conviction.
During the proceedings, defendant executed a promissory note, secured by a lien against the family home, agreeing to reimburse the County of Contra Costa (County) for costs incurred in her defense. Following the trial, the County sought an order compelling defendant to reimburse those costs from the proceeds of the sale of her interest in the home. Although the trial court held a hearing with respect to the amount of reimbursable costs incurred by the County, it refused to consider whether defendant had the "present ability" to pay those costs, as required by Penal Code section 987.8, subdivision (b), concluding the presence of the lien made such a finding unnecessary. We conclude the County's lien did not obviate the need for the trial court to determine whether defendant had the financial ability to reimburse the County's expenses, and we remand for the necessary hearing.
Defendant was charged in a single-count indictment, filed August 27, 2003, with the murder of her husband. (Pen. Code, § 187.) The indictment further alleged defendant personally used a deadly and dangerous weapon. (Pen. Code, § 12022, subd. (b)(1).) During defendant's initial trial, she was represented by counsel, but the court declared a mistrial when her attorney suffered a family tragedy. Following a second trial in which defendant represented herself, a jury convicted her of second degree murder, with a finding she used a deadly and dangerous weapon. The trial court imposed a sentence of 16 years to life.
In October 2002, when the killing occurred, the couple was enmeshed in divorce proceedings. When Felix first retained divorce counsel in 2001, he told his attorney defendant "could be violent" and was "unpredictable and ... possibly dangerous." As the proceedings progressed, Felix became more concerned about defendant. By August 2002, Felix was "in fear for his life." According to the couple's youngest son, Gabriel, defendant said on several occasions she intended to kill Felix and discussed the manner in which she would do so. As a result of the frequency and intensity of these threats, a week before the murder Gabriel told his father he "was scared for his [father's] life."
On October 2, 2002, while defendant was away in Montana, Felix obtained a court order granting him custody of Gabriel and exclusive use of the family home in Orinda. When defendant learned of the court order soon after, she and Felix had a "heated" telephone call, during which she threatened to kill him. Felix took the threat seriously enough to report it to the police.
Defendant returned to Orinda on October 9. While Felix was at work the next day, she persuaded Gabriel to help her move Felix's bed and other possessions into a cottage on the property. After Felix arrived home, they had another angry argument, during which defendant again threatened to kill Felix. The police were called, and Felix and Gabriel moved briefly into a hotel. Three days later, a Sunday, Felix and Gabriel awoke early to drive the family's oldest son, Adam, to school at UCLA (University of California at Los Angeles), returning to the Orinda home late at night. Gabriel went to sleep in the house, while Felix retired to the cottage.
The next day, Felix did not return home from work at the expected time and could not be located by telephone. When Gabriel asked defendant if she knew where Felix was, she said she did not know. Gabriel eventually became suspicious and, later in the evening, checked the cottage, finding the front door locked. When Gabriel returned to the house and again asked defendant about Felix, she said, "Aren't you happy he's gone? I am," and, later, "I
When police arrived, they found the floor of the cottage living room covered in dried blood. Tracked across the floor were bloody shoe prints matching defendant's shoe size, along with her bloody footprint. Felix's body, hands still clutching a clump of defendant's hair, was found, according to the prosecution's pathologist, to have at least five deep stab wounds, individually penetrating his right lung, stomach, pericardium, diaphragm, and the fat near his kidneys. He also had a large number of superficial stab wounds and defensive cuts to his hands, forearms, feet, and lower legs and a blunt force injury behind his right ear.
When told of Felix's death by police, defendant showed no emotion, saying, "Oh well, we were going to get a divorce anyhow." In a subsequent police interview, she professed ignorance of Felix's death, evenly recounting her marital grievances with Felix and claiming to have last seen him early on the prior morning, before he and Gabriel drove Adam to Los Angeles. Police examined defendant for fresh wounds and found none.
At trial, defendant acknowledged killing Felix, characterizing her acts as self-defense. Defendant described at length her troubled marriage, characterized by Felix's psychological and physical abuse of her. On the night of the killing, she testified, she went to the cottage to talk to Felix between 10:30 and 10:45, taking pepper spray as a precaution. For a time, they discussed financial matters and their children. Felix became angry, and at some point he walked over and struck defendant in the face. Defendant sprayed him, but he was undeterred, hitting her again. After further struggle, he grabbed a knife and stabbed at her leg, piercing her pants. Afraid for her life, defendant kicked Felix in the groin, grabbed the knife from him, and began stabbing him. She then took steps to cover up the killing and denied involvement to the police because she believed she would be "railroaded" by the criminal justice system.
The couple's middle son, Eli, testified in support of defendant. Eli, who was residing at a boys ranch at the time of the killing, confirmed Felix was violent and controlling. Contrary to the testimony of his brothers, Eli denied defendant was ever violent with Felix or had ever threatened him.
Defendant also offered Dr. John Cooper, an expert on forensic pathology, to opine on the cause of Felix's death. According to Cooper, Felix died of
Defendant raises a number of challenges to her conviction. We consider each in turn.
C. Miranda Violation
Defendant contends the trial court erred in admitting evidence of statements she made to police during an interrogation following the discovery of Felix's killing because she was not given proper warnings under Miranda, supra, 384 U.S. 436. The Attorney General effectively concedes the warnings did not comply fully with Miranda's requirements, a failing that would have justified exclusion of the statements in the prosecution's case-in-chief. The Attorney General argues, however, that defendant forfeited any claim of error by failing to raise this issue at trial and that any error from admission of the statements was harmless.
Defendant was interviewed by police soon after Felix's body was discovered. The interviewing officer began by telling defendant she was not free to leave and, as a result, was entitled to be informed of her legal rights. He then told her she had "the right to remain silent," to have an attorney present during questioning, and to an appointed attorney if she could not afford one. When the officer then asked defendant if she wanted to discuss "what happened," she said she did, although she complained she was "very, very tired." Noting he was tired as well, the officer began to question her. Defendant's subsequent statements were introduced as evidence during the prosecution's case.
Despite the unambiguous nature of the officer's error, defendant never raised this issue below. Prior to the first trial, defendant's retained counsel did move to suppress her statements to police, but he did not challenge the adequacy of the Miranda warnings given to defendant, despite making the motion to suppress under the purported authority of Miranda. Instead, counsel argued the statements were "coerced" because police pressured defendant by taking Gabriel into custody at the same time she was detained. Counsel also challenged the admissibility of statements defendant made to police prior to being given any Miranda warnings.
An evidentiary hearing was held prior to the first trial at which defendant and the officer testified. The trial court ruled defendant was taken into custody at her home, prior to the formal police interrogation, but it refused to suppress her comments made at that time because they were not made in response to police questioning. The court also rejected her claim of coercion regarding statements made after the Miranda warnings were given. Although counsel had not challenged the adequacy of the Miranda warnings given defendant, the court nonetheless noted that it had reviewed the tape of the interview and concluded "a Miranda, full Miranda, advisement was given." Defense counsel did not object to or otherwise comment on the court's unsolicited conclusion that a full Miranda warning had been given, although he was provided an opportunity to do so.
During preparation for the second trial, defendant was initially represented by retained counsel. When the attorneys were discussing with the court the need for making in limine motions in preparation for the second trial, the court ruled that all pleadings, arguments, and rulings of the court from the first trial would be incorporated into the second trial, "with the understanding that you're not waiving any objections or ... objections to rulings, that you made the first time."
At the second trial, after the testimony of the officers who responded to her home, defendant raised a general objection "to every non-Mirandized statement," disputing again the admissibility of the statements she made before being interrogated at the police station. In response, the court noted, "The Miranda issue was litigated prior to the first trial. It wasn't renewed formally. I'm gathering that there's a renewal of that." The court denied the motion after further argument.
Later, when one of the interrogating officers testified, defendant objected to admission of the statements she made to him as "a violation of my Miranda rights." The court initially responded, "The Miranda issue is one for the Court, and has already been litigated and decided." When defendant contended, "I have new evidence," however, the court sent the jury away and heard argument. Defendant told the court, "I have examined the ... transcripts very carefully, and I have done some more research. And ... the transcripts indicate that prior to talking to [the interrogating officer] I told him that I was very, very tired. That is enough to trigger ... not just a Miranda warning, but to indicate to the officers that they should not proceed with the discussion." In the colloquy that followed, defendant did not challenge the substantive adequacy of the Miranda warnings, although she did raise again the issues surrounding the statements she made before being given the warnings. The court overruled defendant's objection, in the process reiterating that it had earlier concluded the Miranda warnings were "properly given."
Based on this record, there is no question the issue now raised—the substantive adequacy of the Miranda warnings given to defendant prior to her police interrogation—was never brought to the attention of the trial court or asserted as a basis for suppressing her statements during trial. Defendant cited Miranda, but the only arguments made under the authority of that decision were the claims her statements given after the Miranda warnings were coerced and her statements made prior to the warnings should be suppressed.
Defendant argues she "properly preserved" the issue by objecting on grounds of Miranda both prior to the first trial and during the second trial. As the discussion of the record shows, however, defendant did not merely cite Miranda. She and her retained counsel carefully articulated their arguments under Miranda. Both arguments contended her statements to police were coerced. No mention was made of the warnings themselves. These claims of coercion are simply not sufficient to preserve the present issue under Evidence Code section 353, subdivision (a), because they did not call to the attention of the trial court the substantive inadequacy of the warnings under Miranda and provide the trial court an opportunity to avoid error on
3. Ineffective Assistance of Counsel
Defendant contends the fault for the failure to raise the inadequacy of the Miranda warnings lay with her retained counsel, whose motion in limine to suppress the statements prior to the first trial did not mention it. When a defendant elects self-representation, however, he or she can cite the errors of counsel as constituting ineffective assistance only when counsel has been assigned a particular role in connection with the proceedings, and only to the extent counsel has performed inadequately in that role. (People v. Blair (2005) 36 Cal.4th 686, 723 [31 Cal.Rptr.3d 485, 115 P.3d 1145]; see, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 157 [99 Cal.Rptr.2d 485, 6 P.3d 150] [allowing ineffective assistance claim where defendant officially represented himself, but his attorneys retained responsibility for pretrial and trial proceedings].) While it is true, as defendant argues, her counsel was not merely advisory but responsible for all aspects of her defense at the first trial, he was relieved of those duties prior to commencement of the second trial, which led to the judgment here under consideration. As far as the record reveals, he had no role in that trial. Rather, defendant took on herself the responsibility for making all evidentiary objections. It was therefore defendant's own failure to raise the Miranda issue when her statements to police were offered into evidence in the second trial that led to the forfeiture. "A self-represented defendant may not claim ineffective assistance on account of counsel's
Defendant contends retained counsel should be held responsible because he failed to make the Miranda argument prior to the first trial, arguing the trial court incorporated its rulings from the first trial into the second. While we might find some merit in this argument if, at the second trial, the court had prohibited the making of new arguments on issues covered in rulings from the first trial, refused to reconsider rulings made at the first trial, or otherwise dogmatically held to those rulings, that was plainly not the case. On the contrary, the trial court's incorporation of proceedings from the first trial was merely a convenience, intended to relieve the attorneys of the burden of relitigating issues already raised and resolved.
Even if the trial court's error in admitting defendant's statements on the prosecution's case-in-chief had been preserved for appeal, we would find no grounds for reversal because, under these circumstances, any error in the admission of those statements was not prejudicial to defendant. In making this determination, we apply the Chapman standard requiring reversal unless admission of the statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 21-22 [17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Lujan (2001) 92 Cal.App.4th 1389, 1403 [112 Cal.Rptr.2d 769].)
The evidence of defendant's guilt, apart from her statements to police, was strong. In the days prior to the killing, defendant had made a number of
Defendant contends admission of the statements was damaging because her various complaints about Felix to the interrogating officer revealed "[m]ultiple motives" to kill him. As an example, she cites her comments about Felix's success in obtaining custody of Eli, his reduction of support payments to her, his efforts to remove her from the family home, his remark to Gabriel she was crazy, and his success in winning away Gabriel's loyalty. Virtually all of these issues, however, were covered by the testimony of other witnesses, particularly Gabriel and Felix's attorney. There was ample evidence, apart from defendant's statements to police, that defendant felt herself wronged by Felix and bore extraordinarily angry feelings toward him at the time of the killing. Admission of these statements to police was therefore merely cumulative on issues that, to a large degree, were not even in dispute.
Defendant also argues "her false denials of any involvement in Felix's death suggested guilt." While this may be true, any suggestion of guilt was entirely the result of the strength of the evidence discussed above. Her denials to police were not inculpatory in themselves. If they suggested her guilt in context, it was only because of the strong evidence that she committed the killing.
In this regard, we do not consider as prejudicial any effect her statements to police might have had in refuting defendant's own testimony asserting self-defense. Defendant cannot rely on prejudice arising out of the tendency of the statements to rebut her own testimony because the statements would have been admissible to impeach that testimony, regardless of the Miranda
Defendant contends admission of the statements was particularly harmful because the prosecution made them a "centerpiece" of its case. A review of the prosecutor's closing argument shows the true centerpiece of his case was the forensic evidence, which he argued heavily, along with defendant's prior threats against her husband. While defendant's statements were cited in closing argument, they were used to refute defendant's claim she acted in self-defense. As noted above, there can be no claim of prejudice regarding such a use of the statements, since they would have been admitted as impeachment evidence in response to her testimony.
Defendant acknowledges the statements would have been admissible as impeachment evidence, but she contends, citing our decision in Bradford, supra, 169 Cal.App.4th 843, that their admission can nonetheless be found prejudicial because she might not have testified had the statements not been admitted. In fact, we rejected this type of reasoning in Bradford. In that case, also a murder prosecution, the evidence, apart from the defendant's statements to police, would have supported any verdict from murder to voluntary manslaughter and was arguably consistent with a claim of self-defense. (Id. at p. 855.) The defendant's statements to police, however, were highly inculpatory, tending to rule out any defense for the killing. (Id. at pp. 849-850.) The defendant took the stand and claimed he acted in self-defense, but the jury rejected the testimony and convicted him of second degree murder. (Id. at p. 850.) We found prejudice, noting, "Because of the significant bearing of the confession on the crucial issue of defendant's mental state and the ample evidence that would have supported a finding of voluntary manslaughter rather than murder, we cannot say admission of the confession was harmless beyond a reasonable doubt." (Id. at p. 855.)
In Bradford, the Attorney General argued the statements to police should not be considered prejudicial because they would have been admitted to impeach the defendant's testimony in any event; the defendant responded he would not have testified if not for the need to counter his statements to police. We rejected both arguments, recognizing, "Whether defendant would have testified in the absence of the need to respond to his confession and, if so, whether the confession would have been admitted for purposes of impeachment requires us to engage in speculation about the parties' tactical choices. Because it is impossible to determine what might have happened had the trial proceeded differently, we conclude that prejudice should be evaluated on the basis of the evidence actually presented, while excluding the improperly admitted confession. On this basis, as noted above, we cannot find the
The two cases are otherwise poles apart. In Bradford, the defendant's statements to police were highly inculpatory, while the remaining evidence was ambiguous. Thus, the evidence presented, minus the statements to police, could have supported any one of several verdicts, arguably including acquittal. The defendant's statements to police were prejudicial because they tended to make the lesser verdicts much less probable by ruling out self-defense and heat of passion. In comparison, as discussed above, the evidence of guilt here was strong and unambiguous, and defendant's statements to police were not in themselves inculpatory. Accordingly, under the test we articulated in Bradford, admission of the statements was harmless beyond a reasonable doubt.
Finally, defendant argues that if the statements had been admitted solely for impeachment purposes during her testimony, rather than introduced in the prosecution's case-in-chief, they would have had less evidentiary force because she would have been entitled to a jury instruction precluding their consideration as proof of her guilt. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 63 [17 Cal.Rptr.3d 710, 96 P.3d 30].) Such an instruction, however, would have had little impact on the evidentiary significance of the statements. Their chief value was not to provide affirmative proof of defendant's guilt but to cast doubt on her exculpatory testimony of self-defense. As a result, introduction of the statements in the prosecution's case-in-chief, rather than as impeachment evidence, did not change their value as evidence.
J. Possible Juror Misconduct
Defendant's new trial motion also included evidence suggesting juror misconduct. She contends the trial court abused its discretion in declining to conduct an evidentiary hearing with respect to the possibility of such misconduct.
The claim of possible misconduct was based on jurors' comments during a press conference conducted in the courthouse after the verdict was announced. The jurors were informed of the conference by the trial court while still in the courtroom, and the nine who elected to participate were escorted to the conference by court officials after the jury was discharged. In support of her claim of juror misconduct, defendant submitted a declaration from a spectator at the trial that day, stating the spectator "quickly made [her] way downstairs" to attend the press conference after the jurors were discharged. According to the spectator, the jurors who participated in the conference "arrived within minutes."
One of the topics addressed during the press conference was defendant's decision to act as her own attorney. When asked how her self-representation affected the jury's decisionmaking, one juror commented, "Well we all kind of talked about it, and we decided ... that whether we liked her or not, umm, or her antics or not, was really not ... a question for us. We didn't have to like her ... to make a decision." When asked to evaluate her performance as counsel, two jurors expressed the opinion that defendant would have been better off with an attorney. After one juror noted defendant was "extremely smart," another said, "Well she's ... very smart. And we've been asked— I've been asked that question a lot, ... and I say that I think she would have been better off with representation." Responding to a followup question, the juror explained defendant was subject to frequent warnings from the court regarding the scope of her examinations and an attorney would have been more likely to stay on relevant topics and "maybe ma[k]e a lot of better points." The jurors nonetheless seemed to believe the evidence was sufficiently convincing that representation by an attorney would not have made a difference in their verdict.
After several questions about their decisionmaking process, discussion turned to the jurors themselves. In response to the question, "How do you feel about all the media attention," a woman juror said, "I want to respond to ... we didn't read anything ... we didn't watch anything ... but we heard there were rumors that [a male juror] and I... [at this point, the juror made a gesture suggesting gossiping] ... which is SO false.... He's getting married, loves his fiancé, so that's the only thing that the media was making stuff up, or if you weren't making it up, you know, exaggerating things, that were so far-fetched." The same juror later said the jury consented to the press conference because "we've not been allowed to talk for four months."
In declining to order an evidentiary hearing regarding the possibility of misconduct, the trial court noted, "There must be a threshold of some
The disapproval of juror conversations with nonjurors derives largely from the risk the juror will gain information about the case that was not presented at trial. (See, e.g., In re Lucas (2004) 33 Cal.4th 682, 696 [16 Cal.Rptr.3d 331, 94 P.3d 477].) Other types of juror misconduct, for example, include independently investigating the facts, bringing outside evidence into the jury room, injecting the juror's own expertise into the deliberations, and engaging in an experiment that produces new evidence. (People v. Wilson, supra, 44 Cal.4th at p. 829.) Prohibited juror conversations that result in the communication of extrinsic information are similarly regarded as presumptively prejudicial. On the other hand, where the juror conversations involve peripheral matters, rather than the issues to be resolved at trial, they are generally regarded as
When a defendant has made a motion for a new trial based on juror misconduct, the trial court has the discretion to hold an evidentiary hearing to determine the validity of the charges if there are material, disputed issues of fact. Such a hearing is not to be used, however, as a "`"fishing expedition"'" to search for possible misconduct. (People v. Avila, supra, 38 Cal.4th at p. 604.) We review the trial court's decision to deny a hearing on juror misconduct for abuse of discretion. (Ibid.) When reviewing the trial court's denial of a motion for a new trial based on juror misconduct, we exercise independent review on the issue of prejudice, but we accept the trial court's findings of fact if based on substantial evidence. (People v. Dykes (2009) 46 Cal.4th 731, 809 [95 Cal.Rptr.3d 78, 209 P.3d 1].)
We find no abuse of discretion in the trial court's decision not to hold an evidentiary hearing on the charges of juror misconduct, largely because the matters purportedly discussed were not prejudicial. Although the first juror said he had been asked about defendant's decision to represent herself "a lot," there is no evidence the juror was asked this question by nonjurors. It is an issue the jurors likely would have discussed among themselves. In addition, as the court noted, there was time for him to discuss this issue with others between the jury's dismissal and the press conference, although, judging from the spectator's declaration, it was a fairly limited time. The case for misconduct was not substantial.
Even assuming the first juror had responded to questions on this issue by a nonjuror, however, this was, as the trial court noted, a "collateral" matter.
The evidence suggesting the second juror, who spoke about media rumors of a romantic relationship between herself and another juror, committed misconduct was somewhat stronger. While she denied watching any media reports about the trial, she acknowledged that someone had told a juror about rumors in the media. Presumably, that person was a nonjuror who had watched the media reports. As the trial court noted, however, there was no way to know whether the communications occurred before or after the verdict was rendered.
More important, the issue discussed by the juror—a rumor among the press that she was romantically involved with another juror—had nothing to do with defendant's guilt and bore no plausible relation to the jurors' deliberations. In the context of the trial, it was trivial, and there was no possibility of prejudice to defendant as a result of the presumed communications. Accordingly, the trial court properly denied the motion for a hearing on misconduct. (See, e.g., People v. Wilson, supra, 44 Cal.4th at p. 840.)
Defendant's arguments that many more jurors could have been involved in extrajudicial communications and that the jurors might have learned other things as a result of their communications are simple speculation, unsupported by any evidence. There is no basis for inferring that, because the jurors had conversations on particular topics, they had additional conversations on other, unrelated topics, as defendant argues. Further, there is no basis for defendant's speculation the jurors themselves might have watched media reports. The second juror stated expressly that they had not heard or seen any such reports. The trial court was not required to order a hearing merely on the basis of speculation. (See People v. Avila, supra, 38 Cal.4th at pp. 604-605.)
K. Reimbursement of County Expenses
Defendant contends the trial court erred in failing to hold a hearing to determine her ability to pay before ordering her to reimburse the County for defense costs it incurred on her behalf.
Prior to the second trial, defendant executed a promissory note to pay the County "the sum
In August 2007, six months after defendant's sentencing, the County filed a motion for an order requiring her to reimburse the County for the costs of defense it had incurred on her behalf, set at nearly $220,000. The County argued defendant had both a contractual obligation to reimburse, based on the promissory note she executed, and a statutory obligation under Penal Code section 987.8. Although the home had not been sold at the time the motion was filed, it was listed at $2 million. The County argued defendant had the ability to reimburse the costs in full because, according to a schedule it submitted, she would receive more than $230,000 even if the home sold for only two-thirds of the asking price.
Defendant filed an opposition to the motion, disputing certain of the County's expenses, arguing she had signed the lien "under duress" and had "revoked it the next day," and asserting she had been found to be, and was, indigent. In other filings and argument before the court, defendant contended she should be found financially unable to reimburse the County for its costs because she was incarcerated, lacked funds, and had no way to earn money.
Although subdivision (b) of Penal Code
2. Legal Background
a. Enforcement of the Promissory Note
The Attorney General first contends a determination of defendant's ability to pay was unnecessary because the promissory note constituted a contract to reimburse costs that can be enforced regardless of defendant's ability to pay.
During argument on the motion, defendant and the trial judge disagreed over the circumstances of the execution of the promissory note. Defendant contended she had executed the note after having been found to be entitled to appointment of counsel as a result of her indigence. The trial judge, speaking from his own memory of events, recalled no finding of indigence.
Although section 987.8 provides statutory authority for the court to order a criminal defendant to reimburse defense costs, any such order must be made pursuant to its provisions. Section 987.8 makes no mention of a contract between a county and the defendant. Conversely, there is no statutory provision for an award of damages for breach of contract through a summary proceeding in the criminal court, the procedure invoked by the County to obtain reimbursement. In the absence of any legal authority permitting enforcement of the promissory note in this manner, the County was required to proceed in the civil courts, providing defendant the opportunity to raise her
b. Section 987.8
The Attorney General also argues, echoing the trial court's reasoning, that an "ability-to-pay" hearing was unnecessary because the County had followed the procedures for obtaining a lien under subdivision (a). The absence of any reference to a defendant's ability to pay in subdivision (a), it is argued, "demonstrates that the Legislature did not intend to impose an ability-to-pay requirement in cases where the defendant had signed a promissory note secured by a lien on real property."
Subdivision (a) allows the trial court, upon "a finding . . . that a defendant is entitled to counsel but is unable to employ counsel," to order a hearing to inquire into the defendant's ownership of attachable real property. Unlike a hearing pursuant to subdivision (b), which occurs only after the conclusion of proceedings, a subdivision (a) hearing can occur at any time. If such property is found, the court may impose a lien. The county thereafter is granted "the right to enforce its lien for the payment of providing legal assistance to an indigent defendant" in the same manner as any lienholder. (Subd. (a).) The language of the subdivision does not expressly state that it is an alternative to the procedures described in the remainder of section 987.8, nor does it state that lien foreclosure can proceed independent of a determination under subdivision (b) that cost reimbursement is appropriate because the defendant has a "present ability" to pay.
Subdivision (a) is lacking important provisions one would expect if it provided a basis for reimbursement of defense costs independent of the procedures in the remainder of the statute. Most prominently, although subdivision (a) states the county may "enforce its lien for the payment of
The trial court assumed that, in the absence of any provision for determining the amount of recoverable defense costs, cost recovery is permitted up to the value of the lien interest in the property. The language of subdivision (a), however, contains no such direction. More important, under the trial court's interpretation the statute provides no authority for the reimbursement of defense costs that exceed the value of the lien interest in the property. The trial court held the County was limited in its recovery of costs to the value of the lien interest, but there is nothing in the statutory language requiring such a limit. Further, there is no reason why, if a defendant is financially able to reimburse the county from other income sources, the county should be so limited in its recovery.
As originally proposed, the subdivision would not have amended section 987.8, but section 987, which governs the appointment of counsel. Subdivision (c) of section 987 permits the court to require a defendant to execute a financial statement to assist the court in determining "whether a defendant is able to employ counsel." With substantially its current language, subdivision (a) was to be added as a new subdivision "(d)" of section 987, permitting a hearing with respect to attachable assets in addition to the financial statement required under subdivision (c). (Sen. Bill No. 2577 (1987-1988 Reg. Sess.) as introduced Feb. 19, 1988.) In this form, the subdivision appears to have been envisioned as an alternative to the procedures of section 987.8. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2577 (1987-1988 Reg. Sess.) Apr. 26, 1988, p. 1.)
As so constituted, the bill was criticized both because the existence of two means for obtaining reimbursement "will be confusing to the judicial system" and because the bill "present[ed] a significant equal protection problem," lacking the procedural guarantees of section 987.8. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 2577 (1987-1988 Reg. Sess.) Aug. 1, 1988, p. 3.) Prior to enactment, the bill was amended to insert the new provision in its present location as subdivision (a) of section 987.8, rather than in section 987. The legislative history contains no explanation for this change of codification, but it is plausible to conclude the insertion into section 987.8 was intended to address the two criticisms by incorporating subdivision (a) into the existing section 987.8 procedures. By integrating the provision for security in subdivision (a) into section 987.8, the change
In the present circumstances, our holding may be largely academic. Defendant, serving an indeterminate prison term with a minimum duration of 16 years, owns an asset that appears to be sufficient to cover her debt to the County. Based on this evidence, the trial court may well conclude defendant has the present ability to pay the debt. Nonetheless, defendant is entitled to a hearing at which she can present evidence and argument to persuade the court that, notwithstanding the value of her interest in the home and her present circumstances, she should not be required to reimburse all or a portion of the County's expenses.
The trial court's judgment of conviction is affirmed, but the court's order requiring reimbursement of the County's defense costs is vacated. The matter is remanded to the trial court solely for the purpose of holding a hearing to determine defendant's present ability to pay all or a portion of the $212,033 in reimbursable defense costs determined by the trial court and entering an appropriate order under section 987.8, subdivision (e).
Dondero, J., and Banke, J., concurred.
Because there is no evidence in the record the County ever adopted a resolution adopting the reimbursement provisions of section 987.8, subdivision (c), a prerequisite under the subdivision, we do not consider it on this appeal.