Opinion
For Opinion on Hearing, see 43 Cal.Rptr. 835, 401 P.2d 227.
Roger Arnebergh, City Atty., Bourke Jones, Marcus E. Crahan, Jr., Asst. City Attys., for petitioner.
Harold W. Kennedy, County Counsel, George W. Wakefield, Chief Asst. County Gounsel, Edward H. Gaylord, Asst. County Counsel, for respondent.
KINCAID, Justice pro tem.
Petitioner is an attorney at low and is the duly appointed Public Defender of the City of Los Angeles. He seeks a writ of mandate commanding respondent The Municipal Court of the Los Angeles Judicial District, County of Los Angeles, State of California, to comply with the claimed requirements of section 987a of the Penal Code by determining a reasonable amount of compensation, including necessary expenses, to be paid to petitioner on account of petitioner's representing a person as court appointed counsel, such person having been determined by the court to be unable to employ counsel.
The respondent Municipal Court has filed a return to the alternative writ of mandate herein and demurs to the petition on the ground that it does not state facts sufficient to constitute a cause of action.
In the instant case petitioner was appointed to represent one Galloway, an indigent charged with a misdemeanor, and did represent him through the conclusion of his case. A motion was made to determine and award petitioner a reasonable sum for compensation and necessary expenses under the provisions of section 987a of the Penal Code, which motion was denied.
Petitioner contends that the matter herein represented is of such public interest as to require an early determination by this court in the exercise of its original jurisdiction rather than proceeding in the more time consuming manner of bringing an action in the Superior Court. It is contended that no questions of facts are presented here and therefore there is no necessity for a trial on the merits.
Respondent concedes and we find that (1) mandamus is an appropriate remedy herein (section 1085, Code of Civil Procedure); (2) this case is a proper one for this court to exercise its original jurisdiction; (3) appointment of counsel is required under section 987a, Penal Code, as amended, in all misdemeanor cases where a defendant requires the aid of counsel and is financially unable to afford such counsel; (4) the County Public Defender is the public defender referred to in Penal Code, section 987a.
Section 987a of the Penal Code provides in pertinent part as follows: 'In any case in which counsel is assigned in the superior court to defend a person, including a person who is a minor, who is charged therein with crime, or is assigned in a municipal or justice's court, or justice court as established pursuant to the Municipal and Justice Court Act of 1949, to represent such a person in such a court and who desires but who is unable to employ counsel, such counsel, in a county, or city and county, in which there is no public defender, or in a case in which the court finds that because of conflict of interest or other reasons the public defender has properly refused to represent the person accused, shall receive a reasonable sum for compensation and for necessary expenses, but amount of which shall be determined by the court, to be paid out of the general fund of the county.'
Respondent contends and petitioner concedes that the County Public Defender of Los Angeles County may not represent persons accused of misdemeanors in the Municipal Court, he being specifically proscribed There remain but two points at issue: (1) Does section 987a, Penal Code, require the County of Los Angeles to pay counsel appointed to defend those in misdemeanor cases who desire but are financially unable to employ counsel where the County Public Defender has no power to represent them; (2) Does the word 'counsel' as used in section 987a include a salaried city public defender when acting in that capacity. Respondent contends that each of these questions must be answered in the negative.
For the reasons hereinafter stated we hold that, even assuming but not deciding that point (1) be answered in the affirmative, our decision that point (2) must be answered in the negative is determinative of the controlling issue here presented.
The peculiar situation presented by the apparent conflict in section 987a of the Penal Code and the above cited sections of the Government Code prohibiting the Public Defender of the County of Los Angeles from representing indigent misdemeanants in the Municipal Court, apparently arises as the result of the veto by the Governor of Senate Bill 95 following the enactment and signing of Senate Bill 73, the latter becoming the amendment to section 987a of the Penal Code now under consideration. Senate Bill 95 would have further amended section 987a, in that it would have provided for appointment of counsel in Municipal and Justice Courts as weall as in the Superior Court, and would have permitted payment by the Courty to assigned private counsel in a case in which the Public Defender is not authorized to represent such person or in which the court finds that because of conflict of interest or other reasons the Public Defender had properly refused to represent the person accused. Senate Bill 95 would further have amended section 27706 of the Government Code so as to require the Public Defender to represent indigent persons in the Municipal and Justice courts as well as in the Superior Court.
It is now respondent's Contention that the literal interpretation of the section under consideration is that in counties having a public defender such county is not liable for compensation to counsel assigned to defend indigent misdemeanats.
Respondent concedes that appointment of counsel is required in all misdemeanor cases where a defendant requires aid of such counsel and is financially unable to afford such counsel. It contends, however, that this right has been accorded to the defendant in this case and he has been represented by counsel in the person of petitioner, the City Public Defender. It asserts that there is no statutory provision that this right to counsel includes compensation of counsel as a right of the defendant and there is no statutory authority to compensation of counsel by payment by the County in a case such as this.
As to the question as to whether the word 'counsel' as used in section 987a, Penal Code, includes a city public defender when acting in that capacity, petitioner argues that it does and that the County is required to reimburse the City in a sum equal to a reasonable amount of compensation as attorney's fees, including necessary expenses, such amounts so paid to petitioner to be delivered by him to his employer the City to be deposited by the latter in its general fund.
As a salaried employee of the City, petitioner concedes he is not entitled to retain for himself any allowance for compensation, or expenses, for representing an indigent misdemeanant in the Municipal Court. Section 68 of the Charter of the City of Los Angeles specifically provides that any fee, recompense or compensation received by him for the discharge of any duty of his office from any person other than the City shall immediately be paid by him to the Treasurer of the City.
Statutes relating to compensation for official services are striclty construed in favor of the government and a public officer may only collect and retain such County of San Diego v. Milotz,
Nothing in either the wording or legislative history of section 987a of the Penal Code indicates any legislative intent that a city public defender shall collect, or a county shall be required to pay additional compensation to a counsel who is paid from other sources, or a county shall be required to reimburse cities for the services as appointed counsel of their salaried public defenders.
The alternative writ of mandate issued herein is discharged, the demurrer to the petition for writ of mandate is sustained and said petition is denied.
ROTH, P.J., and HERNDON, J., concur.