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Doe v. Superior Court of County of Los Angeles

Court of Appeals of California, Second District, Division One.
Nov 14, 2003
No. B169778 (Cal. Ct. App. Nov. 14, 2003)

Opinion

B169778.

11-14-2003

JOHN DOE, a Minor, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, Respondent; THE PEOPLE, Real Party in Interest.

A. William Bartz, Jr., for Minor/Petitioner. No appearance for Respondent.


OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE

We hold that respondent court abused its discretion in refusing to award the entire amount sought to pay for an expert necessary for the defense of indigent minor John Doe, who is charged with, inter alia, murder.

We denominate the indigent minor as "John Doe," do not identify others involved by name, and delete the superior court case number. (Doe v. Superior Court (1995) 39 Cal.App.4th 538, 540, fn. 1.)

As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate "in the first instance." (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) We solicited opposition from the superior court, setting forth our intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) No opposition was filed.

FACTS

Minor John Doe got into a fight with minor F. on school premises. After the fight, F. went home, complained of a headache and nausea, vomited, slept, and then died in his sleep. F. had told his mother he had pain in his face and did not want to talk.

A petition alleging that John Doe committed murder, voluntary manslaughter, involuntary manslaughter, felonious assault and felonious battery was filed.

A police detective testified that a medical examiner had concluded that that the cause of death was blunt force trauma: F. had suffered two injuries to the back left side of his head that caused a hematoma that led to his death.

Defense counsel asked the detective whether she, as a mother, would have taken F. for medical treatment. In his offer of proof, defense counsel stated that F. displayed "the classic symptoms of a concussion, and any parent would immediately get their child medical treatment. In other words, if the mother had acted promptly, we might not be sitting here today." The witness did not answer, and defense counsel went on to ask her whether she knew that F. was a skateboarder who may not have used a helmet. The detective answered that she was not aware whether F. used a helmet.

John Doe moved for appointment of a neurosurgeon to review the autopsy report and testify on behalf of John Doe that F.s life could have been saved if his mother had acted promptly to obtain medical treatment. John Doe sought $2,400: $400 for record review and $2,000 for one-half day of testifying.

By this opinion, we do not decide that this would constitute a defense.

John Does counsel stated in his declaration that, "[a]lthough counsel is privately retained, the minor himself is indigent and is unable to pay for the services of anyone."

Having private counsel does not establish that a defendant is not indigent. (Tran v. Superior Court (2001) 92 Cal.App.4th 1149, 1154.)

Respondent court granted the motion, but limited the amount to pay the expert to $225.

DISCUSSION

Having determined that John Doe was entitled to the appointment of a neurosurgeon expert, respondent court abused its discretion in refusing to authorize the entire amount sought.

An indigent defendant charged with felonies is entitled to those ancillary services which are reasonably necessary to insure presentation of a defense. (Evid. Code, § 730; Ake v. Oklahoma (1985) 470 U.S. 68, 76-77 ; People v. Worthy (1980) 109 Cal.App.3d 514, 520; see Doe v. Superior Court, supra, 39 Cal.App.4th at p. 543.) If a court determines that the services of a neurosurgeon are reasonably necessary to the defense, the court must authorize the payment of the entire fee—otherwise the expert may refuse to provide the services necessary to the defense.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order authorizing the payment of $225 to John Does neurosurgeon expert, and to issue a new and different order authorizing the payment of $2,400 to John Does neurosurgeon expert.

The temporary stay order is hereby terminated.

THE COURT: SPENCER, P. J., VOGEL (MIRIAM A.), J. and MALLANO, J.


Summaries of

Doe v. Superior Court of County of Los Angeles

Court of Appeals of California, Second District, Division One.
Nov 14, 2003
No. B169778 (Cal. Ct. App. Nov. 14, 2003)
Case details for

Doe v. Superior Court of County of Los Angeles

Case Details

Full title:JOHN DOE, a Minor, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF LOS…

Court:Court of Appeals of California, Second District, Division One.

Date published: Nov 14, 2003

Citations

No. B169778 (Cal. Ct. App. Nov. 14, 2003)