I concur in the opinion of Justice Kingsley, but would add another reason.
The economic cost of litigation is a significant factor in our justice system and we should not be reluctant to discuss it.
The fee of a privately employed attorney to prosecute an appeal in the simplest criminal case would be several hundred dollars. The cost of personnel and overhead of the tax-supported agencies—i.e., the trial court which prepares the record, the prosecutor and staff, the public defender and staff, and the three-judge court with its staff—comes to thousands of dollars per appeal.
*156It is indisputable that the cost of employing counsel has an inhibiting effect upon a self-supporting person. Such a person, if fined $50, would ordinarily pay the fine even if he thought the court was wrong.1
What the appellant here is asking in the name of “equal protection” is a privilege which the self-supporting individual does not have.
Surely there is a better way to improve the quality of justice than to spend several thousands of dollars to review each $50 fine imposed upon an indigent person.
Under existing law a defendant’s ability to pay a fine may properly be considered by the trial court in determining both the amount of the fine and the terms of payment. (See Pen. Code, § 1205.) And if a defendant is unable to pay, he may not be imprisoned for his default. (In re Antazo (1970) 3 Cal.3d 100 [89 Cal.Rptr. 255, 473 P.2d 999].) The grievance of an indigent who wishes to challenge a small fine on appeal is the same as the grievance of a self-supporting person: He feels at a disadvantage without counsel, and the cost of an attorney is prohibitive.
Actually the issue which the appellant in the present case wishes to raise is of classic simplicity. He was convicted of failure to appear on a traffic citation, and he claims the trial judge refused to give him a chance to explain his absence. This is not an issue which should require the advocacy of a professional attorney. The reviewing court could readily decide it upon reading or hearing what the trial court had said.
But the would-be appellant, rich or poor, usually will not know how to get this information to the reviewing court without counsel. Although our statutes offer a “right” of appeal in the most petty cases, our procedural rules screen out all would-be appellants except those who are exceptionally tenacious or funded by charity. A more rational reform would start with a policy decision as to what causes and issues should be reviewed. After that, procedures appropriate to those issues and available to all might be devised. Such a change is more likely to appear if we think of due process and equal protection as function rather than form.
Appellant’s opening brief contributes this statistical report: “Very few cases are appealed to the Appellate Department which involve only a fine. The Municipal Court of the Judicial District for the County of Los Angeles has advised counsel that of a total of 114,749 traffic and nontraffic misdemeanors filed by the Judicial District in 1977, only 713 were appealed. Undoubtedly, the vast majority of those appeals were taken from convictions for offenses where the appellant would already be entitled to counsel on appeal as a result of sentences involving incarceration or ‘serious consequences.’ ”