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Court of Appeal, Second District, California.



Decided: February 18, 2010

Fay Arfa for Petitioner. No appearance for Respondent. Steve Cooley, District Attorney, Brentford J. Ferreira and Judith Pittigrew, Deputy District Attorneys, for Real Party in Interest.




We hold that, because the defendant has demonstrated that he is indigent, he is entitled to appointment of ancillary experts, who are on the Los Angeles County Superior Court list of experts, to be paid by Los Angeles County.


Clarke moved in the superior court for appointment of Arfa to represent him on the proceedings related to the order to show cause.   Determining that his parents had paid $35,000 to Arfa, the trial court denied Clarke's request.

Clarke then moved ex parte for appointment of an expert obstetrician-gynecologist, Paul Sinkhorn, M.D., and an expert forensic pathologist, Barry F. Silverman, M.D., both on the Los Angeles Superior Court's expert list, at County expense.

In support of these motions, Arfa stated that Sinkhorn would testify that the victim's genital tears were not caused by a knife, but were “spreading tears” that could have been caused by the medical examiner, rather than having resulted from forcible intercourse.   Sinkhorn would also testify that an expert could analyze the wounds via photograph and would not have had to examine the wounds directly.   Testifying in the stead of expert Antimarino who had provided a declaration in support of the motion for a new trial, Silverman would testify in accordance with Antimarino's declaration that the victim's other wounds-those that were not on her genitals-were consistent with self-infliction and could have easily been self inflicted, the result of the victim's having cut herself with a sharp object on a day or two prior to the day the attack was alleged to have occurred.   Silverman was expected to testify that the victim's non-genital injuries seemed to lack the mild swelling and redness consistent with fresh wounds.   The victim's neck injury, the deepest of the wounds, was superficial and had “scabbed over” before the alleged attack.   Silverman, too, would testify that an expert could analyze the wounds by photograph.

The trial court denied the motion on the basis that Clarke had not proven that he was indigent.   On October 16, 2009, Clarke moved for reconsideration, and, on October 19, the trial court invited Clarke “to contact Gina Rogers, the courthouse financial evaluator.   Ms. Rogers will prepare a detailed report for the court's consideration in deciding whether or not to grant any requests for experts.”

Clarke completed a Financial Statement form, which was forwarded by facsimile to Rogers.   Every place on the form which requires financial information is filled in with the notation of “N/A.”

On December 11, referring to Rogers's report, the trial court denied the motion.   Rogers's report concludes that Clarke is not indigent, because his parents paid for private counsel.   The minute order states:  “The court has read and considered the report from Gina Rogers, financial evaluator at the north district courthouse.  [¶] The report indicates that Mr. Clarke's parents have paid attorney Fay Arfa $35,000 in attorney's fees.  [¶] Based upon the report the court finds that indigency has not been established and therefore the motion for appointment of experts is denied.  ‘If a defendant is able to pay counsel, by whatever means, his indigency has not been established.’   People v. Worthy (1980) 109 Cal.App.3d 514, 520[.]”

Arfa states in her declarations filed in this Court that she has represented Clarke since October 13, 2006;  she substantially reduced her rate and agreed to accept a nominal sum to represent Clarke at the evidentiary hearing;  all of her retainer agreements exclude the costs of experts, investigators, expert consultation, and expert witnesses;  and she was not paid to file the petition.   She also states that financial evaluator Rogers did not ask for any copies of the retainer agreement, nor did she ask Arfa how much money Arfa had been paid so far.


Every indigent defendant is entitled to the appointment of ancillary experts at County expense.  “[A]n indigent defendant has specific statutory rights to certain court-ordered defense services at county expense[, and] an indigent defendant has a constitutional right to other defense services, at county expense, as a necessary corollary of the right to effective assistance of counsel․”  (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 313.)   “Our courts have long recognized that the constitutional right to the effective assistance of counsel includes the right to ancillary experts.   The same courts have also acknowledged that, at the time application is made for the appointment of an expert at public expense, it is often difficult for counsel to demonstrate specific requirements.   As a result, trial courts are encouraged to view such requests with ‘considerable liberality.’ ”  (Doe v. Superior Court (1995) 39 Cal.App.4th 538, 543.)

In People v. Worthy, supra, 109 Cal.App.3d 514, 520, Division Four explained:  “The test of entitlement to county assistance in defense preparation must be indigency.   A test based upon the status of defense counsel would be constitutionally infirm.   If a criminal defendant requires the services of investigators or scientific or medical experts to assist him in preparation of his defense, that assistance must be provided.   Whether it is paid for by the government or by the defendant depends solely on the defendant's economic status.”   Division Four went on to state:  “We concur in the concept that if a defendant is able to pay counsel, by whatever means, his indigency has not been established.”  (Ibid.) Division Four also stated that the burden is on the defendant “to make a showing of need, before the court is required to appoint an expert.”  (People v. Worthy, supra, 109 Cal.App.3d at p. 521.)

In 2001, the Fourth District stated that the financial assistance of family and friends is one factor to be considered in determining indigency:  “ ‘[T]he test of indigency for the purpose of funding investigators and experts is financial means to secure these services.   If the family and friends of a defendant have no legal duty to support him, their financial means would ordinarily be entirely irrelevant.   The fact that they employed counsel for him or gave him money would be relevant to whether he could afford to obtain investigative services.   It would, however, be only one of many facts the court would consider in determining the question of financial ability.’ ”  (Tran v. Superior Court (2001) 92 Cal.App.4th 1149, 1154, quoting Anderson v. Justice Court (1979) 99 Cal.App.3d 398, 403.)   In Tran, the Fourth District went on to state:  “If counsel's fee is so high it exceeds the bounds of reason or shocks the conscience, given the nature of the case involved, the court may reasonably conclude the amount paid was not solely for lawyering services, and that-in essence-fraud or similar improper conduct was being practiced on the court.   In such circumstances, the court may conclude some of the money was not intended as compensation, but was money held for the benefit of the defendant's defense expenses.  [Citation.]  [¶] We caution, however, that the court should not make such a finding merely because the fee is unusually high.   It should not impinge on the upper range of fees upon which parties dealing at arm's length might agree.”  (Tran v. Superior Court, supra, 92 Cal.App.4th at pp.   1157-1158.)

It is undisputed that Clarke has no money of his own.   The only question is whether he does not qualify as an indigent because his parents have paid a fee to counsel.   On this record, the answer is no:  the record is devoid of any evidence that the sum of $35,000 is sufficient to cover the fee of counsel (after over three years of representation) and ancillary experts or that Clarke's parents have promised to continue to pay counsel or costs and expenses.


As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.”  (Code Civ. Proc., § l 088;  Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) _ Cal.4th _, 2010 WL 337147, 11.)   Opposition was requested and the parties were notified of the court's intention to issue a peremptory writ.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)


THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of December 11, 2009, denying petitioner's motion for appointment of expert pathologist Barry F. Silverman, M.D., and expert obstetrician-gynecologist, Paul Sinkhorn, M.D., at County expense, and to issue a new and different order granting same, in Los Angeles Superior Court case No. MA035466, entitled People v. Daniel Ricardo Clarke.


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