PEOPLE v. MAE POLK







Filed 12/13/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. SUSAN MAE POLK, Defendant and Appellant.

A117633 (Contra Costa County Super. Ct. No. 031668-7)

Story continued from part III…..

2. Discussion
A defendant has the right to trial by unbiased, impartial jurors. (People v. Nesler (1997) 16 Cal.4th 561, 578.) To preserve their impartiality, jurors are prohibited from discussing the case, even among themselves, until all evidence has been presented and the jury has retired to deliberate. (Pen. Code, § 1122, subd. (a); People v. Wilson (2008) 44 Cal.4th 758, 838.) A violation of that prohibition through discussion with a nonjuror prior to rendering a verdict is viewed as serious juror misconduct. (Wilson, at p. 838.) “Juror misconduct gives rise to a presumption of prejudice [citation]; the prosecution must rebut the presumption by demonstrating ‘there is no substantial likelihood that any juror was improperly influenced to the defendant’s detriment.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 397.)
The disapproval of juror conversations with nonjurors derives largely from the risk the juror will gain information about the case that was not presented at trial. (See, e.g., In re Lucas (2004) 33 Cal.4th 682, 696.) Other types of juror misconduct, for example, include independently investigating the facts, bringing outside evidence into the jury room, injecting the juror’s own expertise into the deliberations, and engaging in an experiment that produces new evidence. (People v. Wilson, supra, 44 Cal.4th at p. 829.) Prohibited juror conversations that result in the communication of extrinsic information are similarly regarded as presumptively prejudicial. On the other hand, where the juror conversations involve peripheral matters, rather than the issues to be resolved at trial, they are generally regarded as nonprejudicial. (See, e.g., People v. Wilson, at pp. 839–840 [“trivial” comments to a fellow juror not prejudicial where not meant to persuade]; People v. Page (2008) 44 Cal.4th 1, 58–59 [circulation of a cartoon in the jury room that did not bear on guilt not misconduct]; People v. Avila (2006) 38 Cal.4th 491, 605 [juror statements disparaging counsel and the court not material because they have no bearing on guilt]; People v. Stewart, supra, 33 Cal.4th 425, 509–510 [juror who complimented the appearance of the defendant’s former girlfriend committed nonprejudicial misconduct]; People v. Majors (1998) 18 Cal.4th 385, 423–425 [general comments by jurors that did not address the evidence found not prejudicial]; People v. Loot (1998) 63 Cal.App.4th 694, 698–699 [juror who asked a public defender whether the prosecutor was “ ‘available’ ” committed “ ‘technical,’ ” but nonprejudicial, misconduct].) When determining whether communications are prejudicial, the court must consider the “ ‘ “nature and seriousness” ’ ” of the misconduct, particularly its connection with evidence extrinsic to the trial. (People v. Wilson, at p. 839.)
When a defendant has made a motion for a new trial based on juror misconduct, the trial court has the discretion to hold an evidentiary hearing to determine the validity of the charges if there are material, disputed issues of fact. Such a hearing is not to be used, however, as a “ ‘fishing expedition’ ” to search for possible misconduct. (People v. Avila, supra, 38 Cal.4th at p. 604.) We review the trial court’s decision to deny a hearing on juror misconduct for abuse of discretion. (Ibid.) When reviewing the trial court’s denial of a motion for a new trial based on juror misconduct, we exercise independent review on the issue of prejudice, but we accept the trial court’s findings of fact if based on substantial evidence. (People v. Dykes (2009) 46 Cal.4th 731, 809.)
We find no abuse of discretion in the trial court’s decision not to hold an evidentiary hearing on the charges of juror misconduct, largely because the matters purportedly discussed were not prejudicial. Although the first juror said he had been asked about defendant’s decision to represent herself “a lot,” there is no evidence the juror was asked this question by nonjurors. It is an issue the jurors likely would have discussed among themselves. In addition, as the court noted, there was time for him to discuss this issue with others between the jury’s dismissal and the press conference, although, judging from the spectator’s declaration, it was a fairly limited time. The case for misconduct was not substantial.
Even assuming the first juror had responded to questions on this issue by a nonjuror, however, this was, as the trial court noted, a “collateral” matter. Whether defendant would have been better served by counsel was not an issue bearing on her actual guilt or innocence. There was no indication in the juror’s statement at the press conference that he or any other juror had been exposed to information about defendant, the circumstances of the killing, or the witnesses at trial that was not admitted at trial. Nor did the juror indicate any belief defendant’s performance as an attorney was related to the issue of her guilt. In these circumstances, any presumption of prejudice was rebutted because there is no substantial likelihood that any juror was improperly influenced to defendant’s detriment by the suspected communications. In the absence of more conclusive evidence of prejudicial misconduct, there was no duty to hold a hearing.
The evidence suggesting the second juror, who spoke about media rumors of a romantic relationship between herself and another juror, committed misconduct was somewhat stronger. While she denied watching any media reports about the trial, she acknowledged that someone had told a juror about rumors in the media. Presumably, that person was a nonjuror who had watched the media reports. As the trial court noted, however, there was no way to know whether the communications occurred before or after the verdict was rendered.
More important, the issue discussed by the juror—a rumor among the press that she was romantically involved with another juror—had nothing to do with defendant’s guilt and bore no plausible relation to the jurors’ deliberations. In the context of the trial, it was trivial, and there was no possibility of prejudice to defendant as a result of the presumed communications. Accordingly, the trial court properly denied the motion for a hearing on misconduct. (See, e.g., People v. Wilson, supra, 44 Cal.4th at p. 840.)
Defendant’s arguments that many more jurors could have been involved in extra-judicial communications and that the jurors might have learned other things as a result of their communications are simple speculation, unsupported by any evidence. There is no basis for inferring that, because the jurors had conversations on particular topics, they had additional conversations on other, unrelated topics, as defendant argues. Further, there is no basis for defendant’s speculation the jurors themselves might have watched media reports. The second juror stated expressly that they had not heard or seen any such reports. The trial court was not required to order a hearing merely on the basis of speculation. (See People v. Avila, supra, 38 Cal.4th at pp. 604–605.)
K. Reimbursement of County Expenses
Defendant contends the trial court erred in failing to hold a hearing to determine her ability to pay before ordering her to reimburse the County for defense costs it incurred on her behalf.
1. Background
Prior to the second trial, defendant executed a promissory note to pay the County “the sum as fixed by the Superior Court for Court Appointed Counsel services and for any other cost related to my defense.” Performance under the note was secured by a deed of trust against defendant’s interest in the Orinda home she owned with Felix, purchased in 2000. In 2006, their respective interests were partitioned at the request of his estate, and in June 2007, a referee was appointed to sell the home.
In August 2007, six months after defendant’s sentencing, the County filed a motion for an order requiring her to reimburse the County for the costs of defense it had incurred on her behalf, set at nearly $220,000. The County argued defendant had both a contractual obligation to reimburse, based on the promissory note she executed, and a statutory obligation under Penal Code section 987.8. Although the home had not been sold at the time the motion was filed, it was listed at $2 million. The County argued defendant had the ability to reimburse the costs in full because, according to a schedule it submitted, she would receive more than $230,000 even if the home sold for only two-thirds of the asking price.[1]
Defendant filed an opposition to the motion, disputing certain of the County’s expenses, arguing she had signed the lien “under duress” and had “revoked it the next day,” and asserting she had been found to be, and was, indigent. In other filings and argument before the court, defendant contended she should be found financially unable to reimburse the County for its costs because she was incarcerated, lacked funds, and had no way to earn money.
Although subdivision (b) of Penal Code[2] section 987.8 permits the court to order reimbursement of defense costs only if a defendant is found to have the “present ability to pay” them, the trial court declined to make a determination of defendant’s ability to repay the County’s expenses. The court explained it viewed itself as proceeding under subdivision (a) of section 987.8, which establishes a procedure for securing the reimbursement of fees for court-appointed counsel through an attachment of property. The court interpreted subdivision (a) as requiring an initial hearing to determine whether the defendant was unable to employ counsel, and, if so, whether the defendant possessed property that could be used to secure reimbursement of fees. Once that determination had been made, in the court’s view, the defendant was responsible for reimbursing defense costs to the extent of the value of the secured property.
After hearing testimony regarding the various charges claimed by the County, the trial court found the reimbursable costs to be $212,033, and set that amount as the value of the lien on defendant’s interest in the home. The trial court’s determination of the amount of reimbursable costs is not challenged on appeal.
2. Legal Background
Section 987.8 establishes the means for a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant. (Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1245.) Under subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the court concludes, after notice and an evidentiary hearing, that the defendant has “the present ability . . . to pay all or a portion” of the defense costs. (§ 987.8, subds. (b), (c), (e); People v. Amor (1974) 12 Cal.3d 20, 29; People v. Phillips (1994) 25 Cal.App.4th 62, 72–73.)[3] If this finding is made, “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.” (§ 987.8, subd. (e).)
“Ability to pay” means “the overall capability” of the defendant to reimburse all or a portion of the defense costs. (§ 987.8, subd. (g)(2).) It requires consideration of the defendant’s financial position at the time of the hearing, his or her “reasonably discernible” financial position over the subsequent six months, including the likelihood of employment during that time, and “[a]ny other factor or factors which may bear upon the defendant’s financial capability to reimburse the county.” (§ 987.8, subds. (g)(2)(A)–(D).)[4] In calculating ability to pay, “the court [must] consider what resources the defendant has available and which of those resources can support the required payment,” including both the defendant’s likely income and his or her assets. (People v. Smith (2000) 81 Cal.App.4th 630, 642; see, e.g., Conservatorship of Rand (1996) 49 Cal.App.4th 835, 842 [bank account]; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394 [real property], but see People v. McDowell (1977) 74 Cal.App.3d 1, 4 [possibility of a future insurance recovery cannot be considered].)
Section 987.8, subdivision (a) (hereafter subdivision (a)), on which the trial court relied in denying a hearing on defendant’s ability to pay, addresses security for the reimbursement of defense costs.[5] Under subdivision (a), when a court finds “that a defendant is entitled to counsel but is unable to employ counsel,” the court may cause to be determined “whether the defendant owns or has an interest in any real property or other assets subject to attachment.” If so, the court can impose a lien on the property, to the extent otherwise permitted by law, and the county may later foreclose on the lien. (Ibid.)
3. Discussion
We conclude the trial court’s compliance with subdivision (a) did not avoid the need for a hearing into defendant’s “present ability” to pay under subdivision (b). As discussed below, subdivision (a) provides a means for securing reimbursement of defense costs, but it is not an independent basis for awarding reimbursement. As a result, a trial court must comply with the remaining provisions of section 987.8, including making a determination of ability to pay under subdivision (b), before reimbursement may be granted.
a. Enforcement of the Promissory Note
The Attorney General first contends a determination of defendant’s ability to pay was unnecessary because the promissory note constituted a contract to reimburse costs that can be enforced regardless of defendant’s ability to pay.
During argument on the motion, defendant and the trial judge disagreed over the circumstances of the execution of the promissory note. Defendant contended she had executed the note after having been found to be entitled to appointment of counsel as a result of her indigence. The trial judge, speaking from his own memory of events, recalled no finding of indigence.[6] According to the judge, after defendant began acting pro se, she asked to be assisted by her prior attorney, rather than the public defender. The attorney declined to accept as payment a security interest in defendant’s home, however, and defendant apparently had no money to pay him. The court recalled that, in order to secure her choice of counsel, defendant agreed to execute the secured promissory note, granting the County reimbursement for his fees from the proceeds of the sale of the home, if the County would pay the attorney.[7]
While the Attorney General may be correct that the promissory note constituted an enforceable contractual obligation to reimburse the County’s defense costs, this would not provide a basis for affirming the trial court’s order. Contracts are enforced through civil proceedings, following the filing of a complaint and service of process. Neither the Penal Code nor the promissory note contains a provision waiving or abbreviating normal civil process for the enforcement of this type of contractual obligation. (See Bradley v. Superior Court (1957) 48 Cal.2d 509, 519–520 [spousal support obligation in property settlement could not be enforced through criminal contempt proceedings].)
Although section 987.8 provides statutory authority for the court to order a criminal defendant to reimburse defense costs, any such order must be made pursuant to its provisions. Section 987.8 makes no mention of a contract between a county and the defendant. Conversely, there is no statutory provision for an award of damages for breach of contract through a summary proceeding in the criminal court, the procedure invoked by the County to obtain reimbursement. In the absence of any legal authority permitting enforcement of the promissory note in this manner, the County was required to proceed in the civil courts, providing defendant the opportunity to raise her objections to payment as defenses in a civil action. Because the trial court could not enter an order of reimbursement on a theory of contract in this proceeding, we cannot affirm the court’s order on that basis.
b. Section 987.8
The Attorney General also argues, echoing the trial court’s reasoning, that an “ability-to-pay” hearing was unnecessary because the County had followed the procedures for obtaining a lien under subdivision (a). The absence of any reference to a defendant’s ability to pay in subdivision (a), it is argued, “demonstrates that the Legislature did not intend to impose an ability-to-pay requirement in cases where the defendant had signed a promissory note secured by a lien on real property.”
The rules governing statutory construction are familiar. “ ‘ “ ‘[A]s with any statute, we strive to ascertain and effectuate the Legislature’s intent.’ ” [Citations.] “Because statutory language ‘generally provide[s] the most reliable indicator’ of that intent [citations], we turn to the words themselves, giving them their ‘usual and ordinary meanings’ and construing them in context [citation].” [Citation.] If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.] If, however, the statutory language is susceptible of more than one reasonable construction, we can look to legislative history in aid of ascertaining legislative intent.’ ” (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708–709.)
Subdivision (a) allows the trial court, upon “a finding . . . that a defendant is entitled to counsel but is unable to employ counsel,” to order a hearing to inquire into the defendant’s ownership of attachable real property. Unlike a hearing pursuant to subdivision (b), which occurs only after the conclusion of proceedings, a subdivision (a) hearing can occur at any time. If such property is found, the court may impose a lien. The county thereafter is granted “the right to enforce its lien for the payment of providing legal assistance to an indigent defendant” in the same manner as any lienholder. The language of the subdivision does not expressly state that it is an alternative to the procedures described in the remainder of section 987.8, nor does it state that lien foreclosure can proceed independent of a determination under subdivision (b) that cost reimbursement is appropriate because the defendant has a “present ability” to pay.
Subdivision (a) is lacking important provisions one would expect if it provided a basis for reimbursement of defense costs independent of the procedures in the remainder of the statute. Most prominently, although subdivision (a) states the county may “enforce its lien for the payment of providing legal assistance to an indigent defendant,” there is no provision for determining the amount of the defendant’s obligation, either the amount of defense costs incurred by the county or the share of those costs the defendant is required to reimburse. As a result, subdivision (a) lacks any provision for determining the amount of the costs that can be recovered upon lien foreclosure. Similarly, subdivision (a) does not provide for the entry of an order requiring repayment. Enforcement of a lien for the payment of defense costs would be difficult, if not impossible, without some type of order or judgment establishing the debt. Given these omissions, subdivision (a) arguably lacks the due process guarantees required before an indigent defendant can be charged for the costs of his or her defense. (E.g., People v. Amor, supra, 12 Cal.3d at p. 29 [implying the requirement of notice and a hearing into an earlier version of section 987.8 as a matter of constitutional necessity]; People v. Phillips, supra, 25 Cal.App.4th at pp. 72–73.)
The trial court assumed that, in the absence of any provision for determining the amount of recoverable defense costs, cost recovery is permitted up to the value of the lien interest in the property. The language of subdivision (a), however, contains no such direction. More important, under the trial court’s interpretation the statute provides no authority for the reimbursement of defense costs that exceed the value of the lien interest in the property. The trial court held the County was limited in its recovery of costs to the value of the lien interest, but there is nothing in the statutory language requiring such a limit. Further, there is no reason why, if a defendant is financially able to reimburse the county from other income sources, the county should be so limited in its recovery.
These problems are avoided if the remaining subdivisions of section 987.8 are interpreted as supplying the content missing from subdivision (a). Under this interpretation, subdivision (a) allows the court to impose a lien on a defendant’s assets early in the criminal proceedings, when the decision to provide counsel is made, thereby securing later reimbursement. The remaining provisions of section 987.8 provide for the determination and documentation of the amount of the obligation for which the subdivision (a) lien provides security. These subdivisions describe the means for determining the collectible amount of the defendant’s debt, prescribe the procedural requirements applicable to that determination, and provide for the entry of an enforceable order requiring payment. This reading, of course, requires the trial court to find the defendant has a “present ability” to pay before an order of repayment can be entered, regardless of whether a subdivision (a) lien has been secured. (§ 987.8, subds. (b), (e).) Given the incomplete nature of subdivision (a), the Legislature does not appear to have intended it as an alternative to the remainder of the statutory procedures, but rather as a supplement.
While not conclusive, the statutory history of subdivision (a) provides support for this reading. Subdivision (a) was added in 1988, at a time when the other provisions of section 987.8 already existed in substantially their present form. (Stats. 1988, ch. 871, § 1, p. 2807.) It was intended to ensure that if counsel was appointed for a defendant who owned real property but had insufficient liquid assets to pay an attorney, reimbursement for public expenditures on counsel could be obtained at a later date from the defendant’s property. As a Senate committee analysis of the bill stated, the purpose of the amendment was “to facilitate the recapture of expenditures arising from the defense of individuals entitled to counsel at public cost.” (Sen. Com. on Judiciary, analysis of Sen. Bill No. 2577 (1987–1988 Reg. Sess.) Apr. 26, 1988, p. 2.)
As originally proposed, the subdivision would not have amended section 987.8, but section 987, which governs the appointment of counsel. Subdivision (c) of section 987 permits the court to require a defendant to execute a financial statement to assist the court in determining “whether a defendant is able to employ counsel.” With substantially its current language, subdivision (a) was to be added as a new subdivision “(d)” of section 987, permitting a hearing with respect to attachable assets in addition to the financial statement required under subdivision (c). (Sen. Bill No. 2577 (1987–1988 Reg. Sess.) as introduced Feb. 19, 1988.) In this form, the subdivision appears to have been envisioned as an alternative to the procedures of section 987.8. (See Sen. Com. on Judiciary, analysis of Sen. Bill No. 2577 (1987–1988 Reg. Sess.) Apr. 26, 1988, at p. 1.)
As so constituted, the bill was criticized both because the existence of two means for obtaining reimbursement “will be confusing to the judicial system” and because the bill “present[ed] a significant equal protection problem,” lacking the procedural guarantees of section 987.8. (Assem. Com. on Public Safety, analysis of Sen. Bill No. 2577 (1987–1988 Reg. Sess.) Aug. 1, 1988, at p. 3.) Prior to enactment, the bill was amended to insert the new provision in its present location as subdivision (a) of section 987.8, rather than in section 987. The legislative history contains no explanation for this change of codification, but it is plausible to conclude the insertion into section 987.8 was intended to address the two criticisms by incorporating subdivision (a) into the existing section 987.8 procedures. By integrating the provision for security in subdivision (a) into section 987.8, the change removed the possibility of confusion arising from the creation of a second means for determining reimbursement. In addition, by making subdivision (a) subject to the procedural protections already present in section 987.8, the change removed any constitutional concerns.[8] Incorporating subdivision (a) into section 987.8 did not impair the purpose envisioned for it, since the new provision continued to provide counties a means for aiding the recapture of defense costs.
Requiring a hearing into a defendant’s ability to pay prior to the enforcement of a lien for repayment of defense costs is consistent with the overall statutory scheme. By enacting section 987.8 to govern reimbursement of defense costs, the Legislature demonstrated its intent to require reimbursement only from those defendants with the means to repay. While the ownership of attachable real property is certainly evidence of an ability to repay, it is not conclusive. A trial court could determine, for example, that forced sale of a personal residence would bring extreme hardship on a defendant’s dependents. Alternatively, if the attached property supports an income-producing asset, such as a personal business, seizure of the real property to satisfy a defense cost obligation could compromise the defendant’s livelihood and jeopardize his or her rehabilitation. There is no indication in subdivision (a) the Legislature intended the real property of a defendant to be sold without regard to the impact of the seizure on the defendant’s family, life, or livelihood, the nature of the asset, or the defendant’s other personal and financial circumstances. Requiring a hearing into these matters by virtue of subdivision (b) prevents an inflexible and potentially counterproductive application of the attachment provisions of subdivision (a).
In the present circumstances, our holding may be largely academic. Defendant, serving an indeterminate prison term with a minimum duration of 16 years, owns an asset that appears to be sufficient to cover her debt to the County. Based on this evidence, the trial court may well conclude defendant has the present ability to pay the debt. Nonetheless, defendant is entitled to a hearing at which she can present evidence and argument to persuade the court that, notwithstanding the value of her interest in the home and her present circumstances, she should not be required to reimburse all or a portion of the County’s expenses.[9]
III. DISPOSITION
The trial court’s judgment of conviction is affirmed, but the court’s order requiring reimbursement of the County’s defense costs is vacated. The matter is remanded to the trial court solely for the purpose of holding a hearing to determine defendant’s present ability to pay all or a portion of the $212,033 in reimbursable defense costs determined by the trial court and entering an appropriate order under section 987.8, subdivision (e).






_________________________
Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.























A117633
People v. Polk



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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Laurel L. Brady

Counsel:

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Catherine McBrien, Deputy Attorneys General, for Plaintiff and Respondent.

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