People v. Barger

Opinion

ELKINGTON, Acting P. J.

Following his indictments, February 10, 1972, and June 14, 1972, for felonious offenses, defendant Ralph Barger’s motion for appointment of private counsel at public expense was granted by the superior court. The court’s order as here relevant provided: “Without prejudice, this Court now will appoint private counsel to represent the defendant, Ralph Barger, but likewise, the Court invokes the provisions of Section 987.8, Penal Code, and pursuant thereto, reserves to the trial court upon the conclusion of the criminal proceedings, . . .” Appointment of private counsel was thereupon made. Judgments of conviction were thereafter entered March 16, 1973, and May 1, 1973, upon which judgments Barger was sentenced to state prison.

No Penal Code section 987.8 proceedings were taken by the People, or anyone, until after Barger had served his sentences and on March 16,

[663]

1977, when the People filed in the above mentioned actions a “Request to recalendar matter for further proceedings pursuant to Penal Code § 987.8(a).” By that request section 987.8 was invoked, with a prayer “that defendant Barger be ordered to pay the entire costs of court-appointed counsel.” Following a hearing the superior court granted the prayer, and judgments totaling $12,730 were entered in favor of the County of Alameda against Barger. Barger has appealed from the judgments.

Penal Code section 987.8, as in effect in 1972 and 1973,

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provided:

“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.” (Italics added.)