PEOPLE v. SPELMAN (1986)

On February 13, 1985, the Grand Jury of Los Angeles County, by indictment, accused Joseph F. Spelman (respondent) of grand theft (Pen. Code, § 487, subd. (1)).¹  The basis of the accusation was that respondent, a private attorney appointed to represent indigent criminal defendants pursuant to section 987.2, stole more than $400 from the County of Los Angeles (County) by false pretenses, i.e., by fraudulently over billing between January 7, 1982 and January 6, 1983.

On April 5, 1985, and pursuant to section 995, subdivision (a)(1)(B), the trial court set aside the indictment and dismissed the case against respondent on the ground that he had been indicted without reasonable or probable cause.   Specifically, the trial court found that there was no evidence that respondent had not actually spent the amount of time he claimed for each case and that there was no evidence that respondent had the requisite criminal intent to steal money from the County.   The trial court did not rule on respondent's evidentiary objections to the grand jury hearing transcript.

 When ruling on a motion to set aside the indictment, the trial court sits as a court of review.   The grand jury's indictment can only be set aside if it is not supported by reasonable or probable cause.   In making this determination, every legitimate inference that can be drawn from the evidence must be drawn in support of the indictment.   If there is a rational ground for believing that a crime has been committed and the defendant is guilty thereof, the indictment will not be set aside.  (People v. Pic'l (1982) 31 Cal.3d 731, 737, 183 Cal.Rptr. 685, 646 P.2d 847.)

We have reviewed the record on appeal in light of the foregoing legal principles which also govern our review of the trial court's order setting aside the indictment and affirm.

 To withstand attack an indictment must be supported by legal and competent evidence.  (People v. Byars (1961) 188 Cal.App.2d 794, 796, 10 Cal.Rptr. 677.)

 Respondent has filed objections with this court to the evidence received by the grand jury and has moved to strike the same.   Citing Byars as authority for the sole proposition that an indictment that is unsupported by any competent and admissible evidence must be set aside, respondent lists 68 evidentiary objections and three motions to strike.   Respondent's failure to cite any legal authority whatsoever in support of any of his objections or motions to strike warrants the rejection of these particular contentions on appeal, and we do so.  (People v. Diaz (1983) 140 Cal.App.3d 813, 824, 189 Cal.Rptr. 784;  People v. Ham (1970) 7 Cal.App.3d 768, 783, 86 Cal.Rptr. 906, disapproved in part on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3, 98 Cal.Rptr. 217, 490 P.2d 537.)

The evidence adduced at the grand jury hearing was that in mid-1983, the County, at the behest of the County Board of Supervisors, performed an audit of the South Gate Municipal Court's expenditures for private attorneys appointed pursuant to section 987.2, to represent indigent criminal defendants.

Respondent was singled out as one of the 10 to 15 attorneys who made the most money during the 1982–1983 fiscal year at the South Gate Municipal Court.   During that period respondent's earnings from that source came to $37,000.

The auditors reviewed the 987.2 attorney declarations that were submitted for compensation of services rendered for a one-year period and the docket sheets for each of the cases for which payment was sought.   They then computed overpayments by listing the total number of hours claimed per day by specific attorneys.   The auditors arbitrarily set eight hours as a full court day and purported to disallow payments for all hours claimed over eight hours.   After reviewing respondent's declarations and docket sheets for each case for which respondent claimed payment, the auditors decided that respondent had received an overpayment of $10,165.   This amount, according to the auditors, represented payment for hours that respondent had not actually worked.

Using their own criteria the auditors reported what they considered to be two major problem areas.   The first was where respondent billed for more than eight court hours per day, and the second was where he represented a defendant with two or more cases or represented more than one defendant at the same time and billed for the same number of hours on each case.

In a letter dated February 3, 1984, the auditor-controller informed the respondent of his findings and asked him to repay the money to the County.   Respondent in his reply letter dated February 22, 1984, denied having been overpaid.   After reviewing his own personal files, respondent stated that he felt that he had not overcharged the County and that he did not owe the County any money.

Grand jury indictment proceedings were thereafter instituted.

“The crime of theft by false pretenses consists of three elements:  (1) the making of a false pretense or representation by the defendant, (2) the intent to defraud the owner of his property, and (3) actual reliance by the owner upon the false pretense in parting with his property.”  (People v. Fujita (1974) 43 Cal.App.3d 454, 467, 117 Cal.Rptr. 757, cert. den., Fujita v. California (1975) 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 451.)

As the trial court found, there was no evidence presented to the grand jury that respondent did not collectively expend the number of hours that he claimed on the declaration which he submitted for each individual case.

We need not undertake a detailed listing of the contents of each of respondent's 987.2 declarations that form the basis of the accusation against him.   It is sufficient to note that in respondent's declarations he utilized the following billing procedures:

If, on a given day, respondent represented a single defendant with more than one case, each of which cases required his attendance in court for the same number of hours, he would submit a bill for each case claiming for each compensation for the total number of hours he had worked collectively on all the cases.   So, for example, if respondent represented a client with three cases and appeared in court on all three cases, individually and collectively for two hours, he would bill two hours on each case for a total billing of six hours time rather than apportion the time.   Respondent would bill in the same fashion on occasions where he represented more than one client and worked on all cases collectively for a period of time.   As a result of these billing practices, respondent was paid for more hours than he physically worked on a given date.   All of his declarations were approved by a trial judge prior to payment.

In his testimony before the grand jury respondent freely admitted to utilizing the foregoing billing procedures and stated that he had been billing in that fashion ever since receiving 987.2 appointments, that he billed the same way in private practice, and that he was aware of other attorneys in South Gate who were billing the same way.   Respondent further testified that neither the County nor any judge of the South Gate Municipal Court had ever informed him either orally or in writing as to how to bill for services rendered or had informed him that he had to apportion his time between or among cases.   No evidence to the contrary was admitted.   Respondent testified that he considered the County to be no different for billing purposes than any other party that contracted with him and that he expected the County to pay for each case to which he was appointed.   He further testified that if he had been informed that he had to apportion his time among cases he would have ceased to accept 987.2 appointments.

Admitted into evidence at the grand jury proceedings were (1) a “Resolution of the Executive Committee of the Los Angeles Municipal Court re Appointments Pursuant to Penal Code Sections 987.2 and 987.3 adopted November 20, 1983” and (2) a memorandum dated October 18, 1984, from the Office of the Presiding Judge of the Municipal Court of the Los Angeles Judicial District to all Bench Officers re “Guidelines Regarding Appointment & Payment of Attorneys” to which was attached a resolution of the Executive Committee of the Los Angeles Municipal Court re appointments pursuant to Penal Code sections 987.2 and 987.3 which apparently was adopted in 1984.   These two documents simply set forth the criteria to be used by judicial officers of the Los Angeles Municipal Court Judicial District when compensating 987.2 attorneys and, as the trial court found, have no bearing on the compensation practices in the South Gate Municipal Court Judicial District.   Nor did the testimony of a Los Angeles Municipal Court judge regarding his belief or expectations as to how attorneys should bill and be compensated have any bearing on the compensation practices in the South Gate Municipal Court Judicial District.   Most importantly, neither of these documents nor the testimony of the Los Angeles Municipal Court Judicial District judge establish guidelines or standards as to how or under what circumstances respondent should have proportionately billed for services rendered on multiple cases in South Gate Municipal Court Judicial District.   Moreover, there is no evidence that he was aware of these documents.

 In sum, the grand jury had no evidence before it from which it could have inferred that there were such guidelines or standards governing the South Gate Judicial Municipal Court District or that respondent knowingly billed for his 987.2 services in contravention of any established billing guidelines or law.   Least significant of all the evidence was the auditor's arbitrary setting, without evidentiary basis, of eight hours as a court day.   From this arbitrary standard it cannot reasonably be inferred that respondent was guilty of theft because he received compensation for more than eight hours of service on certain court days.

Respondent testified that he honestly believed that he was entitled to bill as he did and to be compensated as he was.

A 987.2 declaration form is required to be filed in every case to which an attorney is appointed.   Thereon, the attorney is required to list “in hours” the “TIME EXPENDED” in that case on a particular day and to designate the particular activity for which the time was expended.

While the evidence does demonstrate that respondent was paid for more hours than he physically worked, the record is devoid of any evidence from which it can reasonably be inferred that respondent did not actually expend the amount of time which he claimed to have spent in any particular case.

How a 987.2 attorney should be compensated for his or her services under the circumstances of this case is where the dispute in this case arises.   The grand jury and appellant have apparently blurred the distinction between billing for “time expended” as that term is printed on the declaration form and how a 987.2 attorney is to be compensated when he or she has worked on more than one case during the time for which payment is claimed.   The declaration form does not instruct an attorney to apportion his or her time when so billing although it does ask whether any other application for payment pursuant to section 987.2 has been or will be filed for legal services rendered on the dates specified thereon.

 In the absence of evidence establishing the existence of guidelines to be utilized by 987.2 attorneys when billing for services rendered, the grand jury simply had no evidence from which it could conclude that there was probable cause to believe that respondent was guilty of theft.   This is true even though appellant in his 987.2 declarations incorrectly declared that he had not filed other applications for payment of legal services rendered on the date specified, because a misrepresentation unaccompanied by any evidence that respondent did not actually spend the time and labor on each case that he claimed he had does not constitute a crime.   The trial judge found no intent to defraud, but even assuming, arguendo, that there was such an intent to defraud, in light of there being no evidence of a crucial element of the charged offense, that is, that respondent made a false pretense or misrepresentation as to his method of computation of hours or time expended in or for any one case which resulted in his billing for or obtaining money from the county to which he was not entitled I must conclude, as did the trial judge, that the evidence is insufficient to support the grand jury's finding of reasonable or probable cause.

The concurring and dissenting opinions focus much attention on what their authors perceive to be respondent's bad intent and willingness to perjure himself on claim forms.

That would be in point if respondent had been charged with the crime of perjury, but he was not.   The sole charge against him is for a violation of section 487, subdivision (1) of the Penal Code, that is, of stealing money from the county by false pretenses.   The legitimate compass of our inquiry then, is whether the grand jury had before it enough evidence on each of the essential elements of that crime for it to properly find reasonable or probable cause to indict.

Even assuming, as my colleagues do, that there was an overabundance of proof of one element, i.e., intent to defraud, that supposed overabundance of evidence as to that one element cannot in law supply the missing necessary evidence as to the other essential elements.

It is not the function of any court to judge whether respondent is a good or a bad man.  “Bad men, like good men are entitled to be tried ․ in accordance with the law.”  (Green v. United States (1961) 365 U.S. 301, 309, 81 S.Ct. 653, 658, 5 L.Ed.2d 670 (dis. opn. of Black, J.).)

The judgment is affirmed.

I concur in the result reached in the lead opinion only because I have concluded that insufficient evidence was presented to the grand jury to establish the probability that respondent's representations of his computed “time and labor” (§ 987.3) were false.   However, I disagree that there was no evidence of respondent's intent to defraud, and I feel compelled to elaborate on a number of reasons why his conduct appears less than innocent and honest.

The preprinted application forms that were provided for the submission of attorney billings contained a declaration on the back in which the attorney declares under penalty of perjury that “(1) [t]he services of declarant have concluded and declarant has not received payment for any of the foregoing items from any other source, except as follows:  _” and that “(2) [n]o other application for payment pursuant to Penal Code 987.2 has been made or will be filed for legal services rendered on the date specified herein except as follows (give details and case names and numbers):  _.”  In the blank spaces after these provisions, respondent would always write “No exceptions” even though multiple applications under section 987.2 were submitted for legal services rendered on the same dates by him.   Respondent would sign these applications under penalty of perjury.   The function of these portions of the declarations is obviously to disclose duplicate billings of the same time and to discourage and prevent their occurrence.   It is inconceivable to me that an attorney of respondent's experience and type of practice could have thought otherwise.

“ ‘Intent to defraud is an essential element of grand theft by false pretenses, but such intention is inferable from the facts.’  [Citation.]”  (People v. Britz (1971) 17 Cal.App.3d 743, 752, 95 Cal.Rptr. 303.)

I would find that the false statements on the application forms that no other applications had been submitted for legal services performed on the same day for which compensation was sought pursuant to section 987.2, signed under penalty of perjury, were material misrepresentations of fact constituting inferential evidence of intent to defraud.   Indeed, these repeated misstatements in sworn declarations belie respondent's testimony that he honestly believed he was entitled to bill as he did.

However, I concur in the finding that the grand jury was presented with insufficient evidence from which it could reasonably infer that knowing misrepresentations occurred in respondent's computation method of billing “in hours” for “TIME EXPENDED” on the preprinted form.   In addition to the reasons expressed by my colleague in the lead opinion, I would further observe that there was no evidence presented that the application form was prescribed by either statute or rule of court, or that its purpose was other than for the convenience of the appointing judge, with the reported information to be considered by the judge, together with the other factors set forth in section 987.3, in determining what was “reasonable compensation.”

Section 987.3, subdivision (b), refers not to “hours physically worked” but rather, “The time and labor required to be spent by the attorney.”  (Emphasis added.)   Thus, the section appears to distinguish between “time and labor” as two separate commodities to be expended, as opposed to what might read “time in labor” to refer to hours physically worked.   It is the statute, not such preprinted form designations as “TIME EXPENDED” and “in hours,” that is controlling here.   The statute speaks not of “man hours,” the 50-minute “psychiatrists' hours,” or any other kind of “hours”—just “time and labor.”   In the absence of statutory or decisional law to the contrary, the relationship of the undefined phrases “in hours” and “TIME EXPENDED” in the preprinted application form to the statutory factors of “time and labor required” under section 987.3 is a matter for consideration by the appointing judge in the exercise of his discretion in deciding upon “a reasonable sum for compensation” under section 987.2.

The duty of construing the meaning of the applicable statutes governing compensation of appointed counsel has never been delegated to the County of Los Angeles Office of Auditor-Controller, as far as the record before us reveals.

Also, no evidence was presented to show that “[t]he time and labor required to be spent by the attorney” (§ 987.3) on the assigned cases has been legislatively, judicially or administratively construed to limit his compensable “time and labor” to no more than eight hours per day.   By adopting an eight-hour-per-day limitation on the compensable “time and labor required” of appointed counsel, and applying that standard as the basis for a charge of theft by false pretenses, the county auditor-controller's office is attempting to make an ex post facto determination that has not been mandated or even authorized by either the Legislature or the judiciary.¹

The Legislature has not seen fit to impose a per diem rate ceiling on compensation for appointed counsel;  nor has it prescribed a particular method of billing “time and labor.”   Instead, it has delegated to the judge of the court that appoints counsel the task of determining “a reasonable sum for compensation” (§ 987.2) by the exercise of his discretion subject only to the requirement that the judge consider six specific factors, that include appointed counsel's required “time and labor,” but “no one of which alone shall be controlling.”  (§ 987.3)

The problem presented by reliance upon an auditor's determination of standards for what is “reasonable compensation” based on time sheets rather than a judge's determination based on experience and familiarity with the rigors of his own court and the mettle of attorneys who practice there is illustrated by the following observation:

“The value of an attorney's services cannot be limited to ‘specified and detailed bills of particulars with a specified amount for each item, as in the case of goods sold, or mere manual services rendered.’ ․ [¶] That is necessarily so, for the real value of an attorney's services may be the result of his thought about the legal questions involved, while away from his office, at home, or elsewhere.   An idea thought out in bed at night may be the most valuable part of an attorney's services, and may constitute a solution of the vital question involved in a litigation.  [¶] The standard by which the value of such services is measured is, however, the fair and reasonable value of the services rendered after considering the various elements referred to.   I do not think items as to time actually employed in work on the case are of much importance.   It is the ability of the attorney and his capacity and success in handling large and important matters and in commanding large fees therefor, the amount involved, and the result obtained, which are of prime importance in determining what constitutes a just and reasonable charge.”   (In re Potts' Estate (1925) 213 App.Div. 59, 209 N.Y.S. 655, 657–658.)

In this regard, it is significant that respondent's billings, including many revealing in excess of eight hours per day of time in court, were approved by the judge.

Even so, the spectre of abuse in the absence of objective standards—whether legislative, judicial or administrative—governing compensation for appointed counsel is merely part of the general problem of “mischarging” the government.  “ ‘Labor mischarging’ is the term used largely by government auditors, investigators and prosecutors to describe a particular type of fraud involving the accounting treatment of costs by government contractors.”   (Graham, Mischarging:  A Contract Cost Dispute or a Criminal Fraud? (1985) 15 Public Contract L.J. 208, 209.) ²

A lawyer's efficiency in time management, especially when the time is spent before overburdened trial courts, should not be penalized.   But unconscionable billing practices should not be rewarded either.   The judge of the court that appoints an attorney is the only one vested with the discretion to decide between “efficiency” and “unconscionability” in cases of questionable attorney billings.   When, as in the case at bench, the relationship between the judge that approved the vast majority of alleged overbillings and the attorney who submitted them dates back to a time when the two rode as partners in a police patrol car, the potential for abuse increases.   Furthermore, when the questionable billings by one attorney are out of line with the billings of his appointed colleagues but are nevertheless routinely approved by the same judge over a period of time, the integrity of both attorney and judge becomes suspect.   When that occurs, it follows that the integrity of our entire system for administration of justice, already the subject of heated controversy and criticism, is further impugned.

I am mindful that, “[a]lthough the Penal Code commands us to construe its provisions ‘according to the fair import of their terms, with a view to effect its objects and to promote justice’ (Pen.Code. § 4), it is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings.   [Citation.]  Penal statutes will not be made to reach beyond their plain intent;  they include only those offenses coming clearly within the import of their language.  [Citation.]  Indeed, ‘Constructive crimes—crimes built up by courts with the aid of inference, implication, and strained interpretation—are repugnant to the spirit and letter of English and American criminal law.’  (Ex parte McNulty (1888) 77 Cal. 164, 168 [19 P. 237].)”  (Keeler v. Superior Court, supra, 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 470 P.2d 617.)

Thus, while I will not contort inappropriate criminal sanctions to fit cases of suspected mischarging in attorney billing under section 987.2, particularly in the absence of evidenced legislative intent to punish such abuse and when civil remedies appear to exist, I condemn the kind of sharp practice suggested by respondent's conduct here.

I respectfully dissent from both the lead opinion and the separate concurring opinion.

The lead opinion says “the record is devoid of any evidence from which it can reasonably be inferred that respondent did not actually spend the amount of time he claimed to have spent in any particular case.”   From this thought, my colleagues conclude, apparently, that there was no showing of a false pretense or representation.

I do not agree there is such a void.

There are three elements required to be proved to establish theft by false pretenses, as the majority opinion correctly states.   One element, reliance, is not discussed by the trial court or the lead opinion.   The obvious reason is that reliance is evident from the fact of payments to respondent.

The second element, intent, was found missing by the trial court.   It is assumed, arguendo, to have been established in the lead opinion.   The concurring opinion did find that the intent element was proved for purposes of the indictment.   I agree.   In light of the majority conclusion as to the first element, misrepresentation, I will not burden the record further by discussing the reasons to find intent was shown for purposes of reasonable cause to support the indictment.

The first element requires the making of a false pretense or representation by the defendant.  (People v. Fujita (1974) 43 Cal.App.3d 454, 467, 117 Cal.Rptr. 757.)   The lead opinion concedes respondent misrepresented (“incorrectly declared”) “that he had not filed other applications for payment of legal services rendered on the date specified.”   But the lead opinion rests its affirmance on the absence of “any evidence that respondent did not actually spend the time and labor on each case that he claimed he had․”

“False pretense is defined as ‘a representation of some fact or circumstance calculated to mislead, which is not true.’ ”  (People v. Martin (1957) 153 Cal.App.2d 275, 285, 314 P.2d 493, quoting from People v. Wasservogle (1888) 77 Cal. 173, 175, 19 P. 270.)   The false pretense must be material.   (People v. Martin, supra, 153 Cal.App.2d at p. 286, 314 P.2d 493.)   Whether the false pretense was a material inducement to the conduct of the alleged victim is a question of fact for the determination of the trial court.   (People v. Martin, supra, 153 Cal.App.2d at p. 285, 314 P.2d 493.)

Respondent made three basic representations in his applications for payment under section 987.2.   The representations were made under penalty of perjury, and the information came from his records or memory only.

First, he represented the number of hours expended and the nature of the work performed (arraignment, pretrial, investigation, research, trial, etc.);   second, he represented the date or dates the work was performed;  third, he represented whether or not he had billed or would be billing for any other 987.2 services rendered on the date specified in the subject application.

Obviously, an innocent misrepresentation will not support a grand theft conviction because the misrepresentation must be made with the intent to defraud.

The grand jury apparently concluded respondent's misrepresentation of the number of hours expended or the misrepresentation of no same day services, or both, were made with the intent to defraud, sufficient to constitute reasonable or probable cause.  (People v. Fujita, supra, 43 Cal.App.3d at p. 469, 117 Cal.Rptr. 757;  People v. Proctor (1959) 169 Cal.App.2d 269, 279, 337 P.2d 93.)

A. The grand jury had undisputed evidence before it from which it could find respondent misrepresented the facts regarding same day services in his “No exceptions” response.

B. The grand jury apparently had before it undisputed evidence that as to the number of hours expended, on some 25 occasions, respondent represented one defendant in two or more cases on the same day in the same courtroom and billed the County by multiplying the gross total amount of time spent in court by the number of cases handled.

A few examples taken directly from the exhibits received in evidence by the grand jury will illustrate respondent's practices.

May 5, 1982

1. The application for payment in Municipal Court case No. M 87008 recited that on May 5, 1982, respondent expended five hours in Division Three of South Gate Municipal Court (SGMC) for probation and sentencing in a matter relating to the defendant Bryan Doruth.

2. The application in SGMC case No. M 89888 (defendant the same Bryan Doruth) stated that respondent expended five hours in Division Three on the same May 5, 1982, in “trial time.”

3. The application in SGMC case No. M 85020 recited that on the same May 5, 1982, respondent expended seven hours in “trial time” in Division Three for defendant Ricky Bell.

4. The application in SGMC case No. M 86783 stated that respondent expended seven hours in the same Division Three on the same May 5, 1982, for the same Ricky Bell in “trial time and 1538.5 motion.”

Of course, all four applications contained the sworn statement by respondent that “no other application for payment pursuant to Penal Code 987.2 has been made or will be filed for legal services rendered on the date specified herein except as follows:  No exceptions.”

Respondent admitted in his testimony before the grand jury that he spent only five hours in Division Three on May 5 for Doruth, handling two separate cases, and that he charged ten hours by multiplying the five hours by two cases.

June 30, 1982

1. Respondent billed the County for services to Tyrone Crawford in SGMC case No. M 88262 (seven hours in trial in Division Three on June 30, 1982).

2. He also billed for services to Joseph Garcia in SGMC case No. M 91048 (seven hours in trial in Division Two on the same June 30, 1982).

3. He also billed for services to Anthony Baldwin in SGMC case No. M 89496 (two hours in “pretrial” in Division Two also on June 30, 1982).

Referring to Doruth and to his two-times-five billing, respondent was asked, “Did you follow the same method of billing these cases throughout that entire period?”   He answered, “Yes, sir, I did.”

The lead opinion states the “misrepresentation [was] unaccompanied by any evidence that respondent did not actually spend the time and labor on each case that he claimed,” and therefore, even assuming, arguendo, an intent to defraud, there was no crime because there was no evidence of a false pretense.

Could the grand jury reasonably conclude for purposes of voting on an indictment, that respondent did not spend five hours on Doruth's probation and sentencing in case No. M 87008 and another five hours in trial time on Doruth's case No. M 89888, and seven hours on Bell's case No. M 85020, and seven hours on Bell's case No. M 86783, all on May 5, 1982?   Yes.

Could the grand jury conclude that exhibits 5 and 8 presented mispresentations as to the total number of hours spent, among the four cases therein covered and the tasks performed in those hours, and as to the absence of other 987.2 matters on May 5, 1982?   Of course.

Each application for payment had to be submitted to a judge for approval.   Typically, the applications in issue were submitted to Judge John R. Hopson.   Judge Hopson testified he did not know of respondent's billing practices, and that he (Hopson) expected attorneys to divide their time between two cases handled the same day, rather than to bill for the entirety of the time spent for each of the two cases.

When respondent submitted applications and declarations under penalty of perjury for payment which failed to cross reference the other same day matters, (a) he misrepresented the facts while “sworn,” and (b) he prevented Judge Hopson from exercising his discretion, in reviewing the individual fee applications, with knowledge of all of the facts.   Perhaps Judge Hopson would have approved the full amounts sought by respondent for May 5 or June 30, 1982.   But, perhaps he would have telephoned respondent “to find out what was in his mind for billing for 24 hours,” as he had “called others when they've billed as high as sixteen hours.”

Apparently, the grand jury concluded there was cause to believe respondent falsely misrepresented his same day services knowingly, with the dishonest intent to be paid more than he would have received had he not misrepresented the facts.

“Proof of a false factual representation need not be by words alone;  it may be implied from conduct;  it may be made either expressly or by implication;  the form of the words in which the pretense is couched is immaterial;  if the words or conduct are intended to create the impression that defendant is making a representation as to a present fact, the pretense is within the statute.   [Citations.]”  (People v. Brady (1969) 275 Cal.App.2d 984, 996, 80 Cal.Rptr. 418.)

In Brady, defendant was charged with grand theft by false pretenses for selling a stolen car to a used car dealer.   He argued there was no evidence that he made any representation that he owned the car or that it was not stolen.   Apparently, as a matter of express statement, he was correct.   But his conviction was affirmed based on his presentation of forged title documents showing title in an alias he used and his receipt of the purchase price in that name.

In People v. Randono (1973) 32 Cal.App.3d 164, 108 Cal.Rptr. 326, defendant ordered $21,000 worth of alcoholic beverages from eight different distributors for his dying restaurant.   The liquor then was transported from the recipient vendee to defendant's more successful restaurant, and it was hidden there.   Defendant was charged with grand theft by false pretenses on the ground that he impliedly represented (promised) the buyer would pay for the beverages when he knew the buyer could not and would not pay.   The implication arose from defendant's ordering the liquor without advising the vendors of the buyer's insolvency.   Conviction based upon the unspoken false pretense was affirmed.

It is not unlikely the grand jury concluded herein respondent did not spend 24 hours on May 5, 1982, for defendants Doruth and Bell or 16 hours on June 30, 1982, for defendants Crawford, Garcia, and Baldwin, and that the representation of numbers of hours was a false pretense.   It is not unlikely the grand jury concluded similarly that respondent misrepresented the number of hours spent in the more than 40 cases which were the subject of the prosecution's evidentiary presentation.

The grand jury had before it undisputed and undisputable evidence of misrepresentation on some 51 separate occasions in the year in question (no other 987.2 billings relating to the same days).   Respondent's admission of knowledge of and justification for his billing practices, and Judge Hopson's stated lack of knowledge of respondent's practices combined with the judge's testimony he might have questioned what respondent did, had the complete (and honest) picture been presented to him, enhanced the record and made the indictment undisputable, too.

The defense is that absent clear guidelines from the County requiring attorneys in 987.2 matters to apportion their time among same day cases, as Judge Hopson said he expected, attorneys could treat each case as a separate billing unit and accumulate hours by taking advantage of the fact several cases were calendared on the same day so as to yield enlarged compensation.   Given the opportunity, a trier of fact might have agreed with the defense, although I consider such possibility doubtful.

I do not say that respondent is a bad man or is guilty of grand theft by false pretenses.   I do say the entire record before the grand jury, testimony and exhibits, demonstrates the indictment was supported by probable cause (People v. Pic'l (1982) 31 Cal.3d 731, 737, 183 Cal.Rptr. 685, 646 P.2d 847), the lower court should not have substituted his weighing of the evidence for that of the grand jury, and that the motion to set aside the indictment should not have been granted.  (People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664.)

A trier of fact in possession of all of the facts might not be convinced beyond a reasonable doubt that respondent committed grand theft, but the opportunity was erroneously forestalled by dismissal.

FOOTNOTES

1.   All statutory references herein are to the Penal Code.

1.   While the issue of due process has not been raised by the parties with reference to making the kind of alleged false billings here the basis for a charge of theft by false pretenses based on a county auditor's determination of billing standards, I acknowledge the due process principles that apply whenever the scope of a criminal statute is sought to be enlarged:  “The first essential of due process is fair warning of the act which is made punishable as a crime.”  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 633, 87 Cal.Rptr. 481, 470 P.2d 617.)“It is fundamental that all citizens of a free state must be informed as to what the state commands or forbids, and that no one should be required at peril of life, liberty or property to speculate as to the meaning of the state's penal statutes [citations];  fairness alone requires that no man be held criminally responsible for conduct he could not reasonably understand to be proscribed [citation].   Accordingly, a statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must guess at its meaning and could differ as to its application, does not give fair notice as to the forbidden conduct and lacks an essential ingredient of due process of law.  [Citations.]”  (People v. Apodaca (1978) 76 Cal.App.3d 479, 486, 142 Cal.Rptr. 830.)By contrast and for purposes of illustration only, such due process concerns appear to be less likely to arise if the conduct alleged here were the subject of a fraudulent claims charge under section 72 instead of a grand theft charge under section 487, subdivision (1).   Section 72 provides in part:  “Every person who, with intent to defraud, presents for allowance or for payment to any ․ county ․ board or officer, ․ authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is punishable either by imprisonment in the county jail for a period of not more than one year, by a fine of not exceeding one thousand dollars ($1,000), or by both such imprisonment and fine, or by imprisonment in the state prison, by a fine of not exceeding ten thousand dollars ($10,000), or by both such imprisonment and fine.”  (Emphasis added.)That section appears to require only presentation of a false writing, with intent to defraud, to any county board or officer authorized to allow payment therefor as elements of the offense.   It is an open question, though one not before us for review here, whether the “writings” here were “false” within the meaning of section 72 by virtue of respondent's representations that he had not made and would not make any other applications for compensation as appointed counsel for legal services rendered on the same date for which payment was sought under section 987.2.   In any event, section 72 appears to give “fair warning of the act ․ made punishable as a crime” of submitting any false writing to a county officer authorized to allow payment based on such a writing, when coupled with an intent to defraud.  (See People v. Cobbs (1975) 53 Cal.App.3d 937, 126 Cal.Rptr. 494.)

2.   For a general discussion of the federal approach to government program mischarging, see Note, The False Claims Act and the Proposed Program Fraud Civil Remedies Act (1984–1985) 73 Ky.L.J. 967, and Note, the The Federal False Claims Act:  A “Remedial” Alternative for Protecting the Government from Fraudulent Practices (1978–1979) 52 So.Cal.L.Rev. 154.

McCLOSKY, Acting Presiding Justice.