People v. Kozden

California Court of Appeal Jan 23, 1974 No. Crim 5403Published

Before: Ault

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Holding. The court held that the trial court erred in ordering a defendant to reimburse the county for court-appointed attorney fees under Penal Code section 987.8 because the defendant lacked the "present ability" to pay, as the statute requires actual existing financial resources rather than mere potential earning capacity.

Issues

Whether the trial court's order for reimbursement of attorney fees was supported by substantial evidence of the defendant's 'present ability' to pay under Penal Code section 987.8.
Whether the term 'present ability' in Penal Code section 987.8 encompasses potential future earning capacity or is limited to existing financial resources.

Disposition. reversed

Quotations verified verbatim against the opinion

“We conclude the appeal may be resolved without reference to constitutional issues because there is no substantial evidence to support the trial court’s determination that Kozden possessed the present ability to pay the sum assessed”

“In construing the word “ability” as used in Penal Code section 987.8 to mean “potential, rather than an actual financial resource,” the trial court ignored the fact the Legislature deliberately inserted the modifying word “present””

“Kozden, who owned no property and whose total income from full-time employment totaled $60 per month, was an indigent. He lacked the present ability to pay the county the sum of $600”

Opinion

AULT, J.

Acting in propria persona, defendant Tom Kozden filed a notice of appeal from the trial court’s memorandum decision which required him to pay the County of San Diego a part of the cost of his court-appointed attorney under Penal Code section 987.8. The decision is signed by the judge and filed in the action; its final paragraph is couched in terms of an order. We treat the appeal as being from the appealable judgment which was entered later. (Rules 1, 2 and 31, Cal. Rules of Court;

Martino

Concord Community Hosp. Dist.,

233 Cal.App.2d 51, 55-56 [43 Cal.Rptr. 255]; see gen. 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 69, 366, pp. 4083, 4339.)

On appeal Kozden challenges the constitutionality of Penal Code section 987.8 on various grounds. The issues raised in this aspect of the appeal are now before the California Supreme Court in

People

Amor

(Crim. 17473). We conclude the appeal may be resolved without reference to constitutional issues because there is no substantial evidence to support the trial court’s determination that Kozden possessed the

present ability

to pay the sum assessed, or any other sum.

Kozden and several others were jointly tried in the superior court on a criminal charge. Early in the proceedings (after an attorney had been appointed to represent Kozden, but before the actual trial began), the trial judge told the defendants they might be required to repay all or part of the cost of their court-appointed attorneys. After nearly eight weeks of trial, the court granted Kozden’s motion for acquittal. By this time the County of San Diego had expended $3,865 for the services of his attorney.

The day after Kozden’s acquittal, the court held a hearing to determine his “present ability” to repay all or part of the fees. Kozden’s attorney argued against any assessment, both orally and by written points and authorities. By memorandum decision, filed December 18, 1972, the court ordered Kozden to reimburse the county in the sum of $600 payable at

People v. Kozden

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AULT, J.

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