Gilbert v. Superior Court

Opinion

This petition, filed by a criminal defense attorney, challenges the trial court’s reduction of his compensation as appointed counsel. He was

After further oral and written proceedings, Judge Kawaichi signed a new order fixing the total fees after February 10, 1983, at $31,258.31, plus interest on a portion of that amount from June 16, 1983. This petition followed.

Section 1095 authorizes two counsel on each side to “argue the cause” in a death penalty case. In People v. Jackson (1980) 28 Cal.3d 264 , 285-286 [ 168 Cal.Rptr. 603 , 618 P.2d 149 ], the court ruled that that section did not “purport to authorize or mandate the appointment of additional counsel at public expense, but only to permit the argument of the case by two counsel.” Jackson left open the possibility that equal protection principles would compel appointment of additional counsel if the facts or legal issues were so complex as to warrant it. (Id., at pp. 287-288.) The Jackson court suggested section 987.9 as authority for payment of such additional counsel. (Ibid.)

In the first Keenan opinion (Keenan v. Superior Court, supra, 30 Cal.3d 750 ), the court found an abuse of discretion in failing to appoint additional counsel under section 987.9, which provided at the time: “In the trial of a capital case the indigent defendant, through his counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense. ...” The section provided for an in camera hearing by a judge other than the trial judge presiding over the case.

Before the first Keenan opinion became final, it was modified to rest authority for the appointment upon section 987, subdivision (b), but to require the same confidentiality provided in section 987.9. Section 987, subdivision (b), is the general authority for appointment of counsel in a capital case: “[i]n a capital case, . . . [i]f the defendant is unable to employ counsel, the court shall assign counsel to defend him. ...” (Keenan v. Superior Court (1982) 31 Cal.3d 424 [ 180 Cal.Rptr. 489 , 640 P.2d 108 ].)

The appointment order did not cite the authority for petitioner’s appointment. The county assumes, with no evidence, that the court relied upon the erroneous code section and the wrong version of Keenan. But where the record is silent, it is presumed that the court acted correctly. In any case, however, on February 10, 1983, before petitioner performed the services for which he was not paid, the court filed a new order explicitly grounding the appointment upon section 987, subdivision (b). No jurisdictional defect has been shown.

(2) Do principles of estoppel or contract bar reduction of petitioner’s fees after the services were rendered and partial payment was made?

Petitioner’s most compelling argument against the trial court’s order reducing his compensation is that the county should be estopped to assert any defect in the appointment and compensation order and prevented from altering the terms of the contract. Petitioner asserts that he relied upon Judge Kawaichi’s orders and that “. . . as time for trial drew near, petitioner totally set aside his other clients and law practice, and devoted full time to the preparation and trial of the defense of the Tapia capital case.” He states that at no time prior to the middle of May was he informed that the county or any member of the court challenged the validity of Judge Kawaichi’s orders. He contends that as a matter of fairness his rate of compensation should not have been changed after he performed his services to Mr. Tapia.

As with its other arguments, the county’s argument against estoppel is confusing. Its essential point appears to be that petitioner could not justifiably rely upon an appointment order that was improper. The county argues that the order was improper because the application was based upon the improper version of Keenan and because the appointment was outside the county’s contract with the bar association for appointment of counsel.

In its order reducing fees, the trial court disposed of the estoppel argument as follows: “Another consideration of fairness is the fact that Mr.

Interpretation of this order to extract the court’s meaning is not easy. The court made much of the fact that the original appointment order was changed before petitioner performed the services for which he was not paid. The first order had stated that petitioner was “designated as co-counsel with Jules F. Bonjour, Jr.,” set his rate of compensation, and ordered that he submit a complete accounting upon completing of his services. The second order provided as follows: “Good Cause Appearing, [f] It Is Hereby Ordered that Howard M. Gilbert is appointed as second counsel for the defendant John Tapia in the above entitled action pursuant to Penal Code § 987(b). His rate of compensation pursuant to the criteria set forth in Penal Code § 987.3 shall be $75.00 per hour plus $750.00 per day for trial, [f] It Is Further Ordered that upon submission of statements to the court, and upon approval of said statements by the court, Mr. Gilbert shall be paid by the county monthly commencing on March 1, 1983 until such time as his services on behalf of the defendant are completed.”

In the challenged ruling, the court concluded that this second order charged petitioner with notice that there might be changes in the appointment and that this second order was conditional. It is not clear why the court drew those conclusions. Perhaps the fact of a second order suggested that the appointment was not unalterable. But there was nothing in the second order to suggest that a change in the terms of compensation might take place after the services had been performed. There was nothing conditional about the rate of compensation. The only risk to petitioner apparent from the second order was the risk that the court might not approve all items in the statements submitted by petitioner. At least on the face of the two appointment orders there was no suggestion that petitioner could not rely on the rate of compensation.

In Board of Supervisors v. Superior Court (1983) 147 Cal.App.3d 206 , 212-213 [ 195 Cal.Rptr. 67 ], we discussed estoppel: “The accepted description of the doctrine of estoppel and its application against a public agency is stated in City of Long Beach v. Mansell (1970) 3 Cal.3d 462 , 489, 493 . . .: 1 “Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped

The difficulty in applying the usual estoppel test to this case is that petitioner dealt with more than one public entity. His argument is that the county should be estopped by the court’s action, raising the question of whether the county and the court should be considered one “party” for purposes of estoppel analysis.

We need not answer that question, because we find analysis under contract principles to be more useful. The court, by its appointment orders, offered petitioner the opportunity to represent Mr. Tapia at a rate of $75 per hour and $750 per day of trial. Petitioner accepted the offer by performing the requested services. The contract was breached by the court when it failed to perform its obligation to pay petitioner according to the offered rate of compensation.

The court rejected the contract theory on the following grounds: “Mr. Eskanos, Mr. Gilbert’s attorney, has argued that there is a contract between the court and Mr. Gilbert as defined in the civil code. But the documents in this case clearly show a petition by a criminal defendant in a death penalty case and an order granting the petition upon conditions. The element of mutual consent is not satisfied from the face of the pleadings. Indeed, if there was consent, it was by the defendant through his attorney.”

The court’s rejection of the contract theory is a bit simplistic. “If the offer calls simply for the doing of an act, performance will be a sufficient acceptance, and it is ordinarily not necessary for the offeree first to notify the offeror that he intends to accept and perform. [Citations.]” (1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, § 147, p. 143.) Thus, mutual expression of consent is not required.

The remaining questions are whether a court order can be considered an offer of a contract and whether the court can make an offer which binds the county. The California Supreme Court has forcefully stated that when a court orders services in the support of persons charged with crimes, the

It may not be common practice to characterize a court order appointing counsel as an “offer” to counsel. In fact, in Arnelle v. City and County of San Francisco (1983) 141 Cal.App.3d 693 [ 190 Cal.Rptr. 490 ], Division Two of this court concluded that an appointed attorney could not sue on contract or quasi-contract. However, there the court had not set a compensation rate before the services were rendered. The attorney challenged the court’s finding that $12,352.16 was a reasonable amount and its refusal to pay the $27,369.94 balance on the attorney’s bill. But dicta in Amelle suggests that a contract theory would have applied if the amount of compensation had been agreed upon in advance. The court’s pertinent discussion follows: “The rights and duties involved in representing indigent criminal defendants do not arise from contract. The attorney’s duty to assist the indigent is statutory. (Bus. & Prof. Code, § 6068, subd. (h).) The indigent’s right to counsel is constitutional. (Gideon v. Wainwright (1963) 372 U.S. 335 . . In re Williams (1969) 1 Cal.3d 168 , 174 . . . .) The county’s duty to compensate the attorney and the attorney’s right to be compensated are statutory. (§ 987.2, subd. (a).) Thus the appointed attorney may not sue for compensation, based on contract or quasi-contract, unless such a cause of action is specifically created by statute.

“That the arrangement in section 987.2, subdivision (a), is not to be considered a contract is made clear by the provision for a contract in subdivision (b): ‘[t]he sum provided for in subdivision (a) may be determined by contract between the court and one or more responsible attorneys after consultation with the board of supervisors . . . .’ (Italics added [by the Amelle court].) This subdivision clearly anticipates that the appointed attorney’s compensation, either a flat fee or an hourly rate, will be established upon the attorney’s appointment, before he has undertaken any performance under the contract. [Original italics.] In such a case there would be a contract for the attorney to sue upon if he did not receive his agreed-upon compensation. Here, however, appellant and respondent did not contract.” (Arnelle v. City and County of San Francisco, supra, 141 Cal.App.3d at pp. 696-697, italics added except as noted above.)

If petitioner could sue upon the contract for not receiving the agreed-upon compensation, it follows that he could also challenge a new order by the court reducing the level of compensation after services had been rendered. The trial court’s justification for this reduction centers on “. . . the effect

The county argues that the new order is proper because the original appointment was improper. It argues these points more extensively than other points in the case. However, we conclude that the propriety of the first order is beside the point. Absent some showing of fraud committed by petitioner in obtaining an appointment outside of the bar association contract, petitioner was entitled to the compensation set in his contract. The fact that the court may have erred in its offer or in failing to consult with the board of supervisors cannot be used as a justification for denying petitioner the consideration offered in the court’s order. The consequences of any error by the court must fall upon the county, not upon petitioner.

Let a peremptory writ of mandate issue directing the Alameda County Superior Court to vacate its order reducing petitioner’s compensation and to enter a new order for payment in the originally agreed amount.

White, P. J., and Barry-Deal, J., concurred.