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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Joan Diane AMOR, Defendant and Appellant.

Cr. 23045.

Decided: November 15, 1973

Richard S. Buckley, Public Defender of Los Angeles County, Harold E. Shabo, Howard Price, and Herbert M Barish, Deputy Public Defenders, for defendant and appellant. Terry J. Hatter, Philip L. Goar, Fred Okrand, Los Angeles, as amici curiae for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Howard J. Schwab and Russell Iungerich, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged with felony hit and run (Veh.Code, § 20001).

The public defender was appointed and defendant signed an acknowledgment that she had received a written ‘Notice of Responsibility for Payment of Appointed Counsel and Right to Hearing.’ Defendant pleaded not guilty, and the case was submitted on the transcript of the preliminary hearing. The submission was tantamount to a plea of guilty with an understanding that defendant would be found guilty of a violation of section 21801 of the Vehicle Code.1

Sentence was suspended and defendant was granted summary probation for the term of one year on condition that she pay $125 plus penalty assessment and obey all laws. Probation was to terminate on payment of the fine. Defendant was prepared to pay $50 immediately and the court stayed the balance for 60 days.

Defendant's financial statement showed she was employed as a legal secretary at $650 per month; she paid $195 per month for rent; she owed $50 on a 1962 Oldsmobile; she owed $415 on five charge accounts; and she owed the $160 ($125 plus penalty assessment) imposed in the instant case.

At the hearing under Penal Code section 8 987.8, a month and a half after trial, the trial court found that the reasonable value of the services of the public defender was $100 and that defendant had the financial ability to pay $50. The court required defendant to pay $50 by reason of the provisions of section 987.8 of the Penal Code, and stayed the payment for 60 days or, if an appeal was filed, the stay was to remain in effect until the conclusion of the appeal.

Defendant contends here, and did in the trial court, that section 987.8 of the Penal Code, providing for recoupment of attorney fees, is unconstitutional. Section 987.8 provides as follows: ‘In any case in which a defendant is furnished counsel, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, the court shall make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. If the court determines that the defendant has the present ability to pay all or part of the cost, it shall order him to pay the sum to the county in any installments and manner which it believes reasonable and compatible with his financial ability. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order shall not be enforced by contempt.’


The United States Supreme Court has held ‘that a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.’ (Rinaldi v. Yeager (1966), 384 U.S. 305, 309, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577, 580.)2 The United States Supreme Court has also noted in James v. Strange, supra, that ‘state interests represented by recoupment laws may prove important ones. Recoupment proceedings may protect the State from fraudulent concealment of assets and false assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has required appointed counsel for indigents in widening classes of cases and stages of prosecution. Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs. Finally, federal dominance of the Nation's major revenue sources has encouraged State and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents' counsel fees but of other forms of public assistance as well.’ (James v. Strange, supra, 407 U.S. at p. 141, 92 S.Ct. at p. 2034, 32 L.Ed.2d at pp. 610 and 611.) Our own Supreme Court has also recognized that certain reimbursement statutes are reasonably necessary to accomplish valid legislative purposes. (In re Ricky H. (1970), 2 Cal.3d 513, 522, 86 Cal.Rptr. 76, 468 P.2d 204.) Thus, recoupment statutes are not invalid per se.


However, although ‘there is certainly no denial of the right to counsel in the strictest sense’ in recoupment statutes (James v. Strange, supra, 407 U.S. at p. 134, 92 S.Ct. at p. 2031, 32 L.Ed.2d at p. 607), we find the California statute unconstitutional. Although defendant Amor in the instant case did in fact receive prior notice that she would be liable for recoupment of attorney's fees,3 there is nothing in the statute providing that a defendant who may be liable under such a statute receive notice of the liability or a hearing.4 Furthermore, there is nothing to show that defendant Amor received notice that execution could be issued in the ‘same manner as on a judgment in a civil action.’ (Italics added.) (Pen.Code, § 987.8.) Since a judgment has special ramifications for a defendant and can become a lien against real estate, due process requires that a defendant be notified that his liability is to be in the form of a judgment. Where state law requires ‘that the judge or magistrate inform the indigent defendant that the money expended shall be entered as a judgment against him, it may be argued that the due process ‘notice’ requirement is satisfied.' (William R. Vincent, Constitutional Law—Reimbursement of Costs by Indigent Defendants for Court-Appointed Counsel (1970) 10 Washburn L.J. 113, at p. 116.) In the case at bench the law neither required that defendant receive notice that her liability would be in the form of a judgment, nor is there anything to show that she in fact received notice that there would be a judgment against her. ‘Fairness to the defendant requires that he be told of the practice before counsel is appointed rather than at the time of sentencing.’ (Lee Silverstein, Defense of the Poor (1965) at p. 113.) In the instant case notice was not sufficient to satisfy due process.


Defendant urges other constitutional objections to section 987.8. We do not regard it as either necessary or proper for us to discuss those additional grounds. If the Legislature elects to enact a new statute on reimbursement, it will have opportunity to consider all of the problems inherent in such a procedure and the new statute (if any) can be construed and applied in the light of such new language as may therein appear.

The order appealed from is reversed.


1.  No issue as to the propriety of that plea or of the resulting judgment is raised on this appeal.

2.  Many states have recoupment statutes. (See James v. Strange (1972), 407 U.S. 128, at p. 133, 92 S.Ct. 2027, at p. 2030, 32 L.Ed.2d 600, at p. 606.)

3.  Defendant signed a ‘Notice of Responsibility for Payment of Appointed Counsel and Right to Hearing.’

4.  Since we hold the statute unconstitutional on another ground we do not reach the question of the effect, in the case at bench, of the fact that notice of potential liability was, in fact, given and a hearing held, attended by defendant.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P.J., and DUNN, J., concur.