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SB-355 Reimbursement for court-appointed counsel.(2017-2018)

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Date Published: 02/14/2017 09:00 PM
SB355:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 355


Introduced by Senators Mitchell and Lara

February 14, 2017


An act to amend Sections 987.8 and 987.81 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


SB 355, as introduced, Mitchell. Reimbursement for court-appointed counsel.
Existing law requires a court to assign counsel to defend a defendant if the defendant desires the assistance of counsel and cannot afford to pay for counsel. Upon conclusion of the proceedings against the defendant, or withdrawal of counsel, existing law authorizes the court to make a determination of the ability of a defendant to pay all or a portion of his or her defense. Existing law authorizes the court to order a defendant to reimburse the county for the costs of counsel and other legal assistance.
This bill would make the reimbursement for counsel and other legal assistance applicable only in cases where the defendant is convicted of a felony or a misdemeanor.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 987.8 of the Penal Code is amended to read:

987.8.
 (a) Upon a finding by If the court finds that a defendant is entitled to counsel but is unable to employ counsel, the court may 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 If 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, court or upon the withdrawal of the public defender or appointed private counsel, the court may, 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 (1) If 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

(2) This subdivision applies to 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) (1) At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights:

(1)

(A) The right to be heard in person.

(2)

(B) The right to present witnesses and other documentary evidence.

(3)

(C) The right to confront and cross-examine adverse witnesses.

(4)

(D) The right to have the evidence against him or her disclosed to him or her.

(5)

(E) The right to a written statement of the findings of the court.

If

(2) 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

(3) An 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, 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 his or her 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, or to county jail for a period longer than 364 days, including, but not limited to, a sentence imposed pursuant to subdivision (h) of Section 1170, 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 that 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. counsel and is convicted of a felony or a misdemeanor.

SEC. 2.

 Section 987.81 of the Penal Code is amended to read:

987.81.
 (a) In any case in which If 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, 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 any case where if the court has ordered the probation officer to investigate and report to the court pursuant to subdivision (b) of Section 1203, the court may 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 being furnished by the court, the court shall may 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, may, 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.
(d) This section shall apply only when the defendant is convicted of a felony or a misdemeanor.