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MEMORANDUM TO Frank Sieferman Jr Chair and Members of

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                                                   MEMORANDUM

      TO:               Frank Sieferman, Jr., Chair, and Members of the
                         Board of Supervisors

      FROM:             Robyn Truitt Drivon, County Counsel

      DATE:             June 6, 2006

      RE:               Approve Agreement with Attorney Clyde M. Blackmon for Court Appointed Legal
                        Services for Defense of Indigent Defendant (Yolo Superior Court Number 04-7249)
                        (General Fund Impact $10,000)

      RECOMMENDED ACTION

      Approve the attached agreement between the County and Attorney Clyde M. Blackmon for representation
      of Defendant Volarvich in Yolo Superior Court case number 05-7249.

      FISCAL IMPACT

      There are no funds available in the Indigent Defense Budget to cover this Agreement. This budget unit
      has exceeded its allocation and there will need to be a year-end Transfer From Contingencies to balance
      this budget. The exact amount of this transfer is unknown at this point in time but is expected to exceed
      $800,000.

      REASON FOR RECOMMENDED ACTION

      On December 7, 2005, the Court appointed Kevin Clymo and Fred Dawson as attorneys for Defendant
      Brendt Anthony Volarvich. On May 3, 2006, Mr. Clymo unexpectedly passed away and the appointment
      of replacement counsel was immediately necessary. The Court is expected to appoint Mr. Blackmon as
      attorney of record by the next court date of June 5, 2006.

      BACKGROUND

      Defendant Volarvich is charged with first degree murder with special circumstances for allegedly
      shooting CHP Officer Andy Stevens on November 17, 2005. Also in connection with this crime, two
      other people have been arrested. One is being represented by Conflicts Panel Attorney Rodney Beede and
      the other has privately retained counsel. The Public Defender has declared a conflict of interest for
      Defendant Volarvich and Conflicts Panel Attorney J. Toney, who was initially appointed to represent
      Defendant Volarvich, also has declared a conflict of interest. Accordingly, on December 7, 2005, the
      Court appointed Kevin Clymo and Fred Dawson to represent Defendant Volarvich.
Frank Sieferman, Jr., Chair, and Members
 of the Board of Supervisors
June 6, 2006
Page - 2

Since their appointment Attorneys Clymo and Dawson have been providing legal services on behalf of
Defendant Volarvich pursuant to their Court appointment. On May 3, 2006, Mr. Clymo unexpectedly
passed away. Mr. Blackmon is a highly qualified criminal attorney and is willing to act as attorney for
Defendant Volarvich under the present circumstances.. The attached agreement detail the terms of the
representation of Defendant Volarvich to be provided by Mr. Blackmon. These terms include the
following payment schedule:

       Phase 1        PreTrial Preparation          $5,000/month

       Phase 2        Trial to Verdict, or Until
                      Conclusion of Trial           $5,000/week

       Phase 3A       Post-Verdict Motions          $5,000/month
                      if Death Penalty              $15,000 max.
                      Recommended by Jury

       Phase 3B       Post-Verdict Motions in       $2,500/month
                      if Death Penalty Not          $7,500 max.
                      Recommended by Jury

The agreement also provide for reopeners in the event that there is a change of venue, the death penalty is
no longer sought, or any other similar material change in the circumstances which exist at the date of full
execution of these agreements.

CONSULTATION WITH OTHER AGENCIES

This office has been assisted by staff of the County Administrator’s Office and J. Toney, Indigent Defense
Panel Administrator.

Attachment
                               AGREEMENT NO. ____________

                Agreement Between Yolo County and Clyde M. Blackmon, Esq.
                    for Defense of Indigent Person in Conflict of Interest Case

       THIS AGREEMENT (“Agreement”) made and entered into this _____ day of _________,
2006, by and between the County of Yolo (“County”) and Clyde M. Blackmon, 813 6th Street, Suite
450, Sacramento, CA, 95814 (“Attorney”), who agree as follows:

                                      W I T N E S S E T H:

       WHEREAS, Brendt Anthony Volarvich (“Defendant”) is a defendant in the proceedings entitled
 People v. Volarvich, Yolo Superior Court Number 05-7249; and

       WHEREAS, on December 7, 2005, the Court appointed Attorney Kevin D. Clymo as lead
counsel to represent Defendant in this case with Keenan counsel Fred N. Dawson; and

      WHEREAS, on or about May 26, 2006, the Court appointed Attorney Clyde M. Blackmon as
Keenan counsel; and

       WHEREAS, the appointment of an attorney was made under the provisions of sections 987 and
987.2 of the Penal Code which provide for the appointment of counsel for indigent persons and also for
the appointment of private counsel where the Court finds that, because of conflict of interest or other
reasons, the County Public Defender has properly refused to provide representation and that the sum
provided for compensation of counsel so assigned may be determined by contract; and

       WHEREAS, Attorney is willing, competent and able to provide the legal services required of
Attorney by this Agreement for the compensation set forth herein;

       NOW, THEREFORE, the County and Attorney agree as follows:

1.     Legal Services. With the exception of such staff as may be authorized and funded pursuant to
       the provisions of Penal Code section 987.9, Attorney agrees to provide, at his own expense, all
       necessary and adequate legal staff to provide adequate legal representation as counsel to
       Defendant in the above-referenced case. Said staff shall consist of such staff as necessary to
       discharge in a professional manner all obligations herein assumed by Attorney. Attorney
       represents and warrants that at all times his personnel shall be competent and that all services
       rendered will be sufficient to meet all constitutional requirements relating to legal services for
       defendants in criminal cases.

2.     Status of Attorney.

       A.      It is understood and agreed by all the parties hereto that Attorney is an independent
       contractor and that no relationship of employer-employee exists between County and Attorney.
       Neither Attorney nor Attorney’s assigned personnel shall be entitled to any benefits payable to
       employees of County. Attorney hereby indemnifies and holds the County harmless from any and


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     all claims that may be made against County based upon any contention by any third party that an
     employer-employee relationship exists by reason of this Agreement.

     B.     It is further understood and agreed to by all the parties hereto that neither Attorney nor
     Attorney’s assigned personnel shall have any right to act on behalf of County in any capacity
     whatsoever as an agent or to bind County to any obligation whatsoever.

     C.      It is further understood and agreed to by all the parties hereto that Attorney must issue any
     and all forms required by Federal and State laws for income and employment tax purposes,
     including W-2 and 941 forms, for all of Attorney’s assigned personnel.

3.   Attorney’s Responsibilities. Attorney shall exercise all of the care and judgment consistent with
     good practices in the performance of the services required by this Agreement and by the Rules of
     Professional Conduct of the State Bar of California. In addition, Attorney shall indemnify, defend,
     and hold harmless the County of Yolo, its elected representatives, officers, agents, and employees
     from and against any and all claims, demands, losses, defense costs, expenses (including attorney
     fees) or liability of any kind or nature, for personal injury or property damage arising out of or, as a
     result of litigation or administrative proceeding(s), alleged to arise out of:

           (a) any negligent act, error, or omission of Attorney, or his agents, representatives, or
     employees, in performing the services, responsibilities, or duties required of Attorney by this
     Agreement; or

             (b) any breach of any statutory, regulatory, contractual, or legal duty of any kind related,
     directly or indirectly, to the services, responsibilities, or duties required of Attorney by this
     Agreement.

     In providing any defense under this paragraph, Attorney shall use counsel reasonably acceptable to
     the County Counsel. The County acknowledges that, in the event that the County seeks to invoke
     the provisions of this Section 3, the County shall take all reasonable steps to minimize its own
     losses and mitigate the damages from which it seeks to have Attorney indemnify, defend and hold
     the County, its elected representatives, officers, agents, and employees harmless. Further, it is
     understood and agreed that the State laws of comparative negligence shall apply in the event that
     the County is found to have been also at fault. The provisions of this Paragraph shall survive the
     termination or expiration of this Agreement.

4.   Insurance.

     A.     During the term of this Agreement, Attorney shall at all times maintain, at his expense,
     insurance against claims for injuries to persons or damages to property which may arise from, or in
     connection with, the performance of the work hereunder by Attorney or any agents, representatives
     or employees of Attorney.

             1.       At a minimum this insurance shall include coverage for comprehensive general
             liability insurance (for the office used by Attorney in connection with the service provided
             pursuant to this Agreement), worker’s compensation insurance as required by the State of


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               California, and professional liability insurance. The comprehensive general liability
               coverage shall not exclude liability assumed by written contract or agreement. The
               comprehensive general liability insurance shall include broad form property damage
               insurance.

               2.      The limits of such insurance shall be no less than $1,000,000 aggregate for the
               comprehensive general liability insurance and $100,000 per occurrence/$300,000 aggregate
               for the professional liability insurance. The County, its elected representatives, officers,
               agents, employees and volunteers shall be named as additional insured on all but the
               professional liability insurance.

               3.     Any deductibles or self-insured retentions must be declared to and are subject to the
               approval of the County Risk Manager.

               4.       Each insurance policy shall be endorsed to state that coverage shall not be
               suspended, voided, canceled by either party, reduced in coverage or in limits except after
               thirty (30) days’ prior written notice by certified mail, return receipt requested, has been
               given to the County Risk Manager.

               5.     Insurance is to be placed with insurers with a current A.M. Best’s rating of no less
               than A:VII, unless otherwise approved by the County Risk Manager.

               6.      Any insurance maintained by the County shall apply in excess of, and not
               contribute with, insurance provided by Attorney’s liability insurance policy.

     B.       Prior to the Phase 1 payment pursuant to this Agreement, Attorney shall furnish the County
     with original endorsements showing the coverage required by this clause. The endorsements are to
     be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements
     are to be received by the County and are subject to the approval of the County Risk Manager before
     work commences. As an alternative to the County’s forms, Attorney may provide complete,
     certified copies of all required insurance policies, including endorsements showing the coverage
     required by these specifications.

5.   Files and Records. For as long as required by applicable laws, Attorney shall maintain in his
     possession following completion of the case all files and records accumulated by him during his
     legal representation of the Defendant. Attorney’s records shall be kept showing case or matter
     numbers to which they pertain and they shall be available for inspection by County or the
     Courts at all reasonable times. Such records shall be kept in such manner as to enable County
     to satisfy the record keeping requirements imposed by the state of California in connection with
     reimbursement of County based on services provided under this Agreement.

6.   Compensation. So long as the District Attorney proceeds with the present criminal charges against
     Defendant, compensation for services provided to Defendant shall be payable as follows:

     Phase 1           PreTrial
                          Preparation          $5,000/month         $5,000 per month, commencing May,


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                                                   2006. First payment shall be made
                                                   within a reasonable time following
                                                   execution of the Agreement. This
                                                   payment, totaling $10,000, shall be
                                                   for May, 2006 and June, 2006.
                                                   Thereafter, payments of $5,000 shall
                                                   be made monthly, with payment due
                                                   on or before the 10th day of each
                                                   month. Attorney shall continue to
                                                   provide legal representation to
                                                   Defendant prior to trial phase without
                                                   any additional compensation from
                                                   County unless in exceptional
                                                   circumstances, e.g., change of venue,
                                                   filing of an extraordinary writ in the
                                                   appellate courts, the County agrees
                                                   that additional compensation is
                                                   warranted. In the event that the case
                                                   is dismissed or otherwise resolved
                                                   short of trial and before all of the
                                                   monthly payments are made, only
                                                   those payments made prior to
                                                   dismissal or other resolution shall be
                                                   required to be paid by County to
                                                   Attorney.

Phase 2 Trial to Verdict, or Until
         Conclusion of Trial         $5,000/week   To be paid during trial at the rate of
                                                   $5,000 per week, or fraction thereof,
                                                   payable at the conclusion of each
                                                   week’s trial. Payments cease when
                                                   verdict is given, jury is discharged,
                                                   or trial is concluded, whichever is
                                                   earlier in time. Trial shall be
                                                   deemed to commence upon hearing
                                                   of in limine motions, and any pre-
                                                   trial hearings which involve
                                                   presentation of evidence and
                                                   confrontation of witnesses shall be
                                                   considered a form of trial.
                                                   Furthermore, in the event the case
                                                   requires a penalty phase sentencing
                                                   jury trial, the same trial rate shall
                                                   continue including for any days
                                                   between guilt phase conclusion and
                                                   penalty phase beginning.


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     Phase 3A        Post-Verdict Motions             $15,000 $5,000 per month for preparation
                     if Death Penalty                 maximum and argument of all appropriate
                     Recommended by Jury                       post-verdict motions. The
                                                              maximum amount of these
                                                               payments is $15,000 though
                                                               Attorney may continue to provide
                                                               services beyond a three month time
                                                               period following the penalty phase.


     Phase 3B        Post-Verdict Motions             $7,500  $2,500 per month for preparation
                     if Death Penalty Not             maximum and argument of all appropriate
                     Recommended by Jury                      post-verdict motions. The maximum
                                                              amount of these payments is $7,500
                                                              though Attorney may continue to
                                                              provide services beyond a three
                                                              month time period following the
                                                              penalty phase.


     Upon submission of a claim, County shall process payment pursuant to the foregoing Phase
     schedule. It is understood that if a particular Phase does not occur, then Attorney is not entitled
     to any compensation for that Phase.

     Attorney represents: (1) that he is an experienced criminal defense attorney; (2) that he fully
     understands the legal services required of him to represent Defendant in the subject case; (3)
     that he has the expertise and legal ability to properly provide those legal services; and (4) that
     he can provide all of these legal services for the compensation set forth in this Agreement.
     Attorney understands that the County is relying on his representations in entering into this
     Agreement.

7.   Expenses of Investigators, Experts, and Consultants.

     With the exception of those ancillary services provided for and funded pursuant to the
     provisions of Penal Code section 987.9, the following shall apply:

     A.     Investigators. To the extent that Attorney requires the assistance of investigators to provide
     adequate legal representation to Defendant in the subject case, the following shall apply:

             1.      Prior to any such retention, Attorney shall obtain a Court order that such
              retention is necessary to meet constitutional requirements for the provision of an
              adequate defense. That Court order shall also set a maximum limit on compensation
              and reimbursement of expenses for the service requested;



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            2.      The hourly rate to be paid to any investigator shall not exceed $45.00; and

            3.      Investigators shall be reimbursed only for expenses actually incurred and
            directly related to the adequate legal representation of Defendant in the subject case
            upon the presentation of a Court Order requiring such reimbursement only as necessary
            to meet the constitutional requirement for the provision of an adequate defense. Unless
            the Court order requires otherwise, reimbursable expenses shall be limited to mileage
            costs (reimbursed at the County approved rate), actual costs for film and developing,
            and actual costs for obtaining photocopies from public and private agencies.

     B.     Experts and Consultants. To the extent that Attorney requires the assistance of experts
     and consultants to provide adequate legal representation to Defendant in the subject case, the
     following shall apply:

            1.      Prior to any such retention, Attorney shall obtain a Court order that such
            retention is necessary to meet constitutional requirements for the provision of an
            adequate defense and the Court order shall also contain a maximum limit for the service
            requested;

            2.      The rates to be paid to experts and consultants shall not exceed the average
            rates paid to experts and consultants in other criminal cases        tried in Yolo
            County as determined by the Court; and

            3.       Expenses of experts and consultants shall not be allowed except those specifically
            identified in the Court order that such expense is necessary to meet constitutional
            requirements for the provision of an adequate defense.

     C.       Attorney shall only be reimbursed for any expenses that he actually incurs in the
     performance of the services required of him by this Agreement and authorized by Order of the
     assigned section 987.9 Superior Court Judge, e.g., in-house and third party copy costs, travel
     outside of the Sacramento/Yolo metropolitan area including mileage and per diem at those rates
     paid       by      the     federal      government       and      as      set     out       at
     http://secureapp2.hqda.pentagon.mil/perdiem/perdiemrates.html, and long distance telephone
     charges.

8.   Reopener.

     A.      In the event any of the following circumstances occur, the County and Attorney shall
     reopen the payments terms of this Agreement for further good faith negotiations between the
     parties hereto:

            i.      The death penalty charge is no longer sought by District Attorney against
                    Defendant
            ii.     There is a change of venue of the trial from Yolo County to another county.
            iii.    Any other similar material change in those circumstances which exist as of the
                    date of full execution of this Agreement by all parties.


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      B.     A request to renegotiate one or more terms of this Agreement will be made in writing,
      addressed to the other party. The request will specify the basis for the request.

      C.     If the request is determined to meet the requirements for renegotiation pursuant to this
      Section, then the parties will meet within 30 days from the receipt of the request and will
      commence in good faith negotiations respecting only the payment terms of this Agreement. The
      sole purpose of the renegotiation will be to determine if there are alternative terms that are
      consistent with the purposes of this Agreement, which do not impose new impacts that were
      unforeseen when this Agreement was entered into by the parties and which do not materially
      change the financial condition of either the County or the Attorney.

9.    Term. The term of this Agreement shall commence on the date of assignment of Attorney to
      represent Defendant as counsel in the above-mentioned proceeding and shall terminate upon
      completion of the trial court proceedings or upon earlier termination of the representation by
      order of the Court.
10.   Disputes. Any dispute arising under this Agreement shall be decided by the County Counsel
      who shall put his decision in writing and mail a copy thereof to the address for the notice to
      Attorney. The decision of the County Counsel shall be final unless within thirty (30) days from
      the date such copy is mailed to Attorney, Attorney informally appeals the decision in writing to
      the Yolo Superior Court Presiding Judge. Any such written appeal shall detail the reasons for
      the appeal and contain copies of all documentation supporting Attorney’s position. After the
      submission of an appeal, Attorney and the County Counsel shall meet with the Presiding Judge,
      or his designee Judge, in chambers or such other place as may be agreed to by the participants
      to resolve the appeal. Pending a final decision of the dispute, Attorney shall proceed diligently
      with the performance of this Agreement and in accordance with the decision of the County
      Counsel. The decision of the Presiding Judge, or his designee Judge, on the appeal shall be
      final for purposes of exhaustion of administrative remedies.

11.   Applicable Laws. In the performance of the services required by this Agreement, Attorney
      shall comply with all applicable Federal, State, or County statutes, ordinances, regulations,
      directives, and laws. This Agreement shall be deemed to be executed within the State of
      California and construed in accordance with and governed by the laws of the State of California.
      Any action or proceeding arising out of this Agreement shall be filed in a California State court
      located in Woodland, California.

12.   County Primary Contact. The Primary County Contact for Attorney with regard to the
      services to be provided by Attorney pursuant to this Agreement shall be the County Counsel.
      The County Counsel shall represent the County in all matters pertaining to the services to be
      rendered under this Agreement except when approval is specifically required by the County
      Board of Supervisors.

13.   Notice.

      A.     All notices shall be deemed to have been given when made in writing and delivered or
      mailed to the respective representatives of County and Attorney at their respective addresses as


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        follows:

        ATTORNEY: Clyde M. Blackmon, Esq.                COUNTY: Robyn Truitt Drivon
                  Blackmon & Associates                         Yolo County Counsel
                  813 6th Street, Suite 450                     625 Court Street, Room 201
                  Sacramento, CA 95814                          Woodland, CA 95695

        B.       In lieu of written notice to the above addresses, any party may provide notices through the
        use of facsimile machines provided confirmation of delivery is obtained at the time of transmission
        of the notices and provided the following facsimile telephone numbers are used:

                To Attorney:            (916) 441-0970
                To County:              (530) 666-8279

        C.      Any party may change the address or facsimile number to which such communications are
        to be given by providing the other parties with written notice of such change at least fifteen (15)
        calendar days prior to the effective date of the change.

        D.     All notices shall be effective upon receipt and shall be deemed received through delivery if
        personally served or served using facsimile machines, or on the fifth (5th) day following deposit in
        the mail if sent by first class mail.

14.     Assignment and Subcontracts. No performance of the legal services required of Attorney by this
        Agreement may be assigned or subcontracted by Attorney.

15.     Amendment. This Agreement may be amended only by written instrument signed by County and
        Attorney.

16.     Waiver. The waiver by County or any of its officers, agents, or employees or the failure of County
        or its officers, agents, or employees to take action with respect to any right conferred by, or any
        breach of any obligation or responsibility of this Agreement shall not be deemed to be a waiver of
        such obligation or responsibility, or subsequent breach of same, or of any terms, covenants, or
        conditions of this Agreement.

17.     Entire Agreement. This Agreement constitutes the entire agreement between County and
        Attorney and supersedes all prior negotiations, representations, or agreements, whether written or
        oral. In the event of a dispute between the parties as to the language of this Agreement or the
        construction or meaning of any term hereof, this Agreement shall be deemed to have been drafted
        by the parties in equal parts so that no presumptions or inferences concerning its terms or
        interpretation may be construed against any party to this Agreement.

/ / /

/ / /

/ / /


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/ / /

/ / /

/ / /

         IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.

County:                                               Attorney:

County of Yolo, a political subdivision
of the State of California                            _______________________________
                                                      Clyde M. Blackmon, Esq.
By_____________________________________
  Frank Sieferman, Jr., Chair
  Board of Supervisors
  County of Yolo, State of California


Attest:

Ana Morales, Clerk
Board of Supervisors

By________________________
        Deputy
        (Seal)

Approved as to Form:

______________________________
Robyn Truitt Drivon, County Counsel




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