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In re Gay12/24/1998
elihood he would have to make large-scale restitution to the client (as he, in fact, later did). Indeed, Shinn's own pending criminal investigation may help explain why he was so anxious to cooperate with the district attorney that he induced petitioner to confess to several robberies-robberies used in aggravation of penalty-without demanding or receiving any assurances the admissions would not be used against petitioner. (See maj. opn., ante, at pp. 19-21.)
I recognize that a court-appointed defense attorney's interest in compensation does not, per se or in general, conflict with the attorney's duty to represent his or her client loyally and diligently. (See, e.g., People v. Kirkpatrick, supra, 7 Cal.4th at pp. 1009-1010.) Here, however, the appointed attorney had previously misappropriated large amounts of money from another client and, as a result, was under threat of losing his livelihood, suffering criminal prosecution, and having to repay the money. Against this background, the attorney engineered his appointment in a capital case, doing so by extraordinary, dishonest means, and for the apparent purpose of quickly obtaining a fee while expending as little time and effort on the case as possible. The attorney carried out his plan by strictly limiting the amount of background investigation and psychological evaluation he authorized his expert to consider or undertake, and generally by preparing and presenting only a rudimentary case in mitigation. This case is not an ordinary one.
In deceitfully obtaining appointment simply for the purpose of making money, Shinn placed his own interests ahead of petitioner's, for under these circumstances petitioner would likely have been better off had he continued to be represented by the public defender's office; certainly he had an interest in making that choice free of misrepresentation by his prospective appointed attorney. In short, these circumstances provide grounds, at the least, for "informed speculation" (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1009) that counsel's conflicts of interest adversely affected his penalty phase performance on petitioner's behalf. Cruel and inexcusable as was petitioner's crime, he was entitled to an attorney who would try to serve, first and foremost, the interests of his client at the penalty phase, instead of the attorney's own. Whether petitioner would have been sentenced to death even with a loyal and dedicated defense attorney we cannot know, nor need we try to decide. Regardless of whether, as the majority concludes, the penalty trial's outcome was likely altered by counsel's deficient performance, to execute a death judgment tainted by such conflicted representation would undermine, rather than advance, society's quest for the just punishment of crime.
WERDEGAR, J.
I CONCUR:
KENNARD, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Unpublished Opinion Original Appeal Original Proceeding XXX Review Granted Rehearing Granted
Opinion No. S030514 Date Filed: December 24, 1998
Court: Superior County: Los Angeles Judge: J. Stephen Czuleger
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