*1 Third Dist. Aug. C015357. 1996.] [No. PEOPLE, Plaintiff and
THE Respondent, III, Defendant and HONIG Appellant.
LOUIS
Counsel
Quin Denvir for Defendant Appellant. General, Williamson, Daniel E. Lungren, Attorney Chief Assistant George General, Anderson, General, R. Attorney Robert Assistant Attorney Jibson, General, J. Robert Attorney for Plaintiff and Deputy Respondent. Opinion an order of (Bill) III from appeals Defendant Louis
SPARKS, Honig J. four counts of making him of guilty a found jury entered after probation of Govern- interest in violation he had a financial in which official contracts that the contends on appeal 1097. Defendant sections 1090 and ment Code and in in certain evidence excluding in the jury, erred instructing trial court further contends the He as a condition probation. restitution ordering and thus were beyond rather than contracts were grants transactions General he that the Attorney crimes. Finally, argues scope charged that the sentencing action. We conclude this authority prosecute lacked mandatory consequently that restitution was believed erroneously court a such impose in whether determining its discretion did not exercise and remand the cause restitution condition We shall set aside the condition. its In all other respects, discretion. exercising for the purpose to the court conviction and order shall affirm the contentions and we defendant’s reject of probation. Background
Factual to the defendant was elected of November In the General Election (Cal. Instruction. of Public office of Superintendent state constitutional was Const., IX, in Defendant office 1983. January He assumed art. office for Election of 1986 and took in the General elected to a second term in this litigation The involved charges term in 1987. January his second made and performed caused to be contracts defendant concern However, (DOE) in 1989.1 years through Education Department with a corpora- in relationship nonprofit are rooted defendant’s charges which was established QEP, known as the Education Quality Project, tion be understood by for the can best The factual basis charges 1982. events. account chronological significant QEP nonprofit corporation.2 in December 1982 as a was incorporated Tramutola, QEP’s first significantly paid who was Defendant told Larry by the Sacramento brought by returned charges against defendant were indictment 1The 24, 1992, in the had been reelected Jury on March after defendant County Grand Although of limitations serving third term. the statute Election and had commenced General to run until not commence charges years, period is three does for the the indictment 801, 803, Code, (c).) alleged (Pen. The indictment subd. discovery of the offense. §§ agreed submit the statute parties The discovery of the offenses occurred December 1990. found the indictment evidence and the court question stipulated to the court on limitations respect appeal with brought timely presented issue is on to have been manner. No prosecution. timeliness of the operation” “essentially a charitable trust prosecutor 2The referred to QEP recognizes Code organization.” Corporations referred to it as a “501C3 controller QEP *15 wife, QEP started before his Nancy Honig, that he and his employee,3 QEP’s here address Throughout period election. the time involved corporate filed and Nancy periodic legal at the residence. statements Honig was Code, 12586; (See, of a Gov. e.g., charitable corporation. reports required Code, 6210, 6324, (a).) QEP subd. for reflected no report Corp. §§ income, not a for the general no and did set forth expenses, purpose Mitra who lived at the residence and volun- Honig corporation. Jazayeri, as at the was no bookkeeper, teered her services testified that time there office or other facilities for the corporation. Tramutola, who made his as an for unions living organizer mid-1983 entities,
and similar met with defendant and He attended Nancy. subsequent organizational with the was meetings Honigs ultimately others hired QEP.4 QEP to work for by Nancy Tramutola that at that testified time was a organization QEP for mission to looking help improve “[a]n schools.” did a have or a to yet product Tramutola’s was around program job go teachers, the state such with as meeting commu- people principals, parents, activists, and occasional look nity at school superintendents, improvement from an organizer’s perspective.
In the course of his Tramutola met who job Linda was then Page, principal of an school elementary in Fremont. Tramutola in a Initially engaged Page discussion about school but their discussion soon improvement generally, focused on involvement. Parental parental involvement was subject particular interest to had Page as she been to establish a attempting program in her parental involvement school. their Following initial meeting, Tramutola contacted for Page her advice with to school frequently respect improvement particular emphasis on involvement. parental For QEP’s the 1983 calendar year annual reflected income of report $60,100 $37,278. QEP expenses identified its services as program types nonprofit corporations: public three corporations, corpora- benefit mutual benefit tions, Code, and religious corporations. (Corp. et seq., 7110 et et seq., seq.) §§5110 From the record it is clear that was incorporated nonprofit public corpora- benefit QEP tion. The obviously controller’s corporation reference as a refers QEP QEP 501C3 Code, federal 501(c)(3), Internal Revenue specifically title 26 United States Code section exempts corporations which certain charitable from income taxation. 3Nonprofit public corporations required benefit are file reports annual charitable trust and, time, Attorney with the required identify General at reports employees these were $30,000 wages. who had over early years received In its have received services QEP from who compensated individuals volunteered their time or who were at levels did not require they reports, employee identified in but was the Tramutola first to be QEP compensated required level that identification. appears compensated organization 4It participation that Tramutola was initial committee, campaign Quality defendant’s QEP known as Education Committee. any campaign Tramutola did not do work for defendant. *16 in the education public involvement program, awareness involving public however, It that by community participation. appears, and business system, Tramutola, least, at to focus on parental was beginning the end QEP’s mission. as involvement to an experimental Tramutola began attempting implement
In early de- in the Oakland school He system. involvement program parental to trying that we were as “in the sense experimental scribed program it, a lot lot of possibilities to to to to boil down of—a how do learn try learn average teacher and the parent that the average and that were things tangible QEP, for lives.” While his job do without their performing could changing and eventually, for advice with Page increasing frequency called Tramutola for her assistance. fall asked to compensated in the Page defendant directed to Thereafter Nancy. that request Tramutola relayed DOE to contract for the to pay Page a short-term consultant staff arrange The contract was in the amount in the school work Oakland system. under state law for short-term $8,500, was maximum which permitted executive office assist- was defendant’s contracts. The contract arranged of defendant’s executive office she that it was funded out ant and believed account. income QEP year reported its annual for calendar report $88,781. QEP’s
$83,031 identified purposes report expenses involvement awareness speeches, public of a consisting public program, business involvement. community education systems, QEP full time. She agreed asked work Page In mid-1985 Tramutola in the absence from her duties in order to do so she took a leave of year. school Tramutola Unified School District for 1985-1986 Fremont would work for year Page that school 1985-1986 Page agreed during school QEP Tramutola testified that 1985-1986 during year exclusively. was close to QEP becoming was still but experimental getting program QEP or that was a conceptual testified Page formal developed program. were but that they working without a set program, developmental stage toward goal. Oakland, worked Page primarily the 1985-1986 school
During year in the supervised by anyone not to and was not she did although report School no work in the Fremont Unified She did system. Oakland school no contact She had from that district. District and did anyone report to, with, during DOE. Tramutola testified nor from the anyone reported respect to him and have reported Nancy reported that year Page and may directed Tramutola she was to some testified that things. Page *17 end very instructions from at the of the Nancy only have received some school year. was during not know how 1985- Page compensated
Tramutola did in did not her Page arranging compensation 1986 school year. participate and were made for her She compensation. did not know what arrangements knew, however, that her from the Fremont Unified School came paycheck District and she was at the same and benefit levels salary that compensated as she would have received as a in the Fremont Unified School principal fact, Smith, District. In defendant directed the DOE James deputy superin- branch, tendent in of the curriculum and instructional to charge leadership a for the Fremont district to arrange school and grant pay Page’s salary benefits was while she on leave of absence school 1985-1986 during Smith a year. grant set from DOE to Fremont district in amount of up $62,190 for the continuation of and salary benefits. Page’s
QEP’s for annual the 1985 calendar showed revenue of report year $221,330 $123,528. In and that was a year expenditures Nancy paid salary $25,000 QEP. had
By 1986 become what Tramutola described Page as an important part QEP. QEP began to a written the form a resource develop protocol manual and Tramutola said that a in that Page major role endeavor. played Tramutola a QEP said that written resource manual on two was important first, levels: it would that do to provide tangible things could people try schools; second, and it improve fundraising would assist by providing to be something shown to foundations tangible and other donors. prospective Page that a resource agreed manual was that would important it provide product QEP could shown to schools as the In program. August 1986 Page others in a effort engaged collaborative draft of a put together resource for QEP manual The first draft was program. very rough QEP and the primitive of the resource manual remained a development continuous for endeavor some time. QEP’s
Tramutola left sometime in time employ Page 1986. At that was named director QEP began running day-to-day operations QEP program. the 1986-1987 school began additional year hiring employ- ees and this one was She Page’s advertisements responsibilities. placed trade QEP. magazines interested to contact her as director of advising parties She conducted recruitment and interview activities and made decisions about hired, who should be final subject approval by employees Nancy. hired to field QEP work for this perform time testified were during they hired her boss. by Page regarded as the was the Fremont Unified paid first half of 1986
During Page been for the grant which had arranged School District pursuant Page For the 1986-1987 school took another year. year school 1985-1986 Fremont School District from her duties with the Unified leave absence She to receive a QEP. salary to work full time continued and continued levels School District at the benefit salary the Fremont Unified through year For the school she have received as 1986-1987 principal. would *18 Fremont Unified Smith to make an with the arrangement defendant told to her to which would continue receive School District pursuant Page the QEP. for At defendant’s direction Fremont while compensation working School No. 4127 with the Fremont Unified DOE entered into contract to the DOE to the Fremont district agreed District. Pursuant the contract pay $69,882, of Page’s was the sum for continuation necessary the sum of which named as in a cover Page “manager” and benefits. was salary Although letter, itself. written QEP nor was in the contract The neither she identified the the Fremont Unified School District as contractor. contract identified Fremont agreed development Pursuant to the contract the district to perform the in and the contract work sheet stated that work school improvement, the in the School District. But contract was to be Fremont Unified performed the was to do was to pass along the Fremont district expected only thing The her and contract benefits. Page continuing pay salary funds by any neither nor Page Page Fremont exercised no control over and district before, DOE As the QEP did work within the Fremont district. employee salary to her Page. did not exercise or control over addition supervision district, in school Page and benefits from the Fremont the 1986-1987 year QEP. In last of from the half began supplemental payments receive $500 in amount month. per these were the of payments supplemental of QEP’s revenues reported annual for the calendar report year $277,438 $208,786. salary In that was year Nancy of expenditures paid $48,000. of the the title executive director
At was beginning Page given QEP from were QEP. that year During Page’s supplemental payments in for her QEP rent to her the use of residence increased and began paying the Fremont QEP’s Page by the first half of 1987 was During paid business.5 4127. In 1987 defendant early Unified School District under contract No. year. directed his staff to contract No. 4127 for the 1987-1988 school extend into two The DOE the Fremont Unified School District then entered in 5Page receiving April $700 from 1987 and began per testified that she month rent QEP $2,000 during payments per year. her were month that supplemental QEP’s that increased to $4,000 tax reported rent for income Page records reflected that addition to received $9,000 purposes reported form on a W-2 on a 1099 form. to contract 4127. first amendment amendments No. extended the term the contract for an additional year, and second amendment increased $3,232 sum that salary contract to reflect increases would be due Page the Fremont district. principal Daniel an educator who hired Rodriguez, Oregon from was by Page QEP for QEP work testified that that was during year program still and that the resource was developmental living manual “a document” were they adding to all time. testified that Page 1987-1988 QEP school year key had been components program clearly defined and were in the She they process refining program. said the resource manual was field being tested cleaned in an effort “to get up QEP out bugs of it.” Eventually copyrighted resource manual.
During Page QEP. hired additional employees Two of these are here. employees noteworthy Erical LaDawn Law was a in the principal *19 Pasadena Unified School District QEP who was hired work by Page to for the 1987-1988 during year. QEP school order to work for she took a leave of absence from the Pasadena Unified School District. that Law During year QEP. was compensated by Perondi was Larry an assistant in the principal Sweetwater Union School District. High asked Perondi to for Page work QEP and he declined but to initially work time and eventually agreed part was QEP on an basis. compensated by hourly
QEP’s $867,124 annual report for 1987 reflects of revenue and expenses $537,649. $63,000. of that During received a of year Nancy salary Also QEP that to during year rent for began pay the offices the Honig residence. QEP
In 1988 a changed QEP to fiscal basis. for year reporting report $723,305 six the first months of 1988 reflected revenue of of and expenses $448,416. that During six-month was period Nancy paid salary $41,200. QEP amount of continued to rent on the office in the pay space $1,000 of residence the rate Honig month. It also per appears during QEP this began what would period holding become annual retreats at the $1,500 for which Honig winery, it rent. paid QEP However, to Page continued work for in the school 1988-1989 year. she had encountered trouble the Fremont Unified School to getting District her allow to take third leave consecutive of absence the 1987-1988 school and did year not believe she would be to allowed take fourth leave absence, so she from resigned her duties in the Fremont Unified School District. Thereafter Page QEP was compensated by directly. new Page school hired
QEP in the 1988-1989 year was expanding included to final The new employees subject Nancy’s approval. employees, District, leave Union School who took a the Sweetwater High Perondi from Dunbar, time, took a QEP full and Antoinette who to work for of absence School in the Pasadena Unified from her duties principal leave absence from the for Law took another leave of absence QEP. work District to QEP. to for working School District continue Pasadena Unified Perondi, for the being Dunbar were hired time Law and During them told that if the state would for school year, Nancy Page pay 1988-1989 that the would QEP a later told state money. Nancy Page it would save lot Smoot at DOE to directed her to call for those employees Gaye pay to make the Smoot was an executive assistant Super- arrangements. Deputy Smoot, Smith, who in turn told at the time. Defendant told intendent Smith the DOE to the Sweetwater Union High to make for arrangements pay School District for the continuation School Pasadena Unified District Perondi, Law and Dunbar the 1988-1989 of the salaries and benefits into No. with the The DOE entered contract Sweetwater school year. which the school School District the DOE paid Union High pursuant $62,755 while he for the benefits Perondi salary district payment QEP. into No. 5356 with worked The DOE entered contract with pay the DOE pursuant agreed Unified School District which Pasadena $65,879 and benefits to Law school for the salary district payment QEP. No. 5356 amended subsequently while she worked Contract was *20 $65,879 for the of of an additional payment provide payment QEP. to Dunbar while she worked for salary and benefits nor the As the case with neither the local school districts had been Page, Perondi, Law or Dunbar during DOE exercised over any supervision they was clear to these that employees school It made year. 1988-1989 with QEP. and executed QEP During worked for agreements they employee QEP in Perondi some work for the Sweetwa- school did year 1988-1989 in and District worked the South Bay ter Union School and also High Districts, elementary National which described as districts School he in Law Union School District. worked feed into the Sweetwater High in Dunbar worked Pomona in the Archdiocese of Los and Angeles, and Unified not work in the Pasadena They Pomona and other districts. did School District. of fiscal reflected revenue
QEP’s for the report year annual 1988-1989 $1,011,074, $1,209,454. of received During and expenses year Nancy $87,200 $11,840, received office Honigs and of and the of benefits salary $12,000. in rental the amount of school year. the end of the 1988-1989 QEP’s near employment left
Page Perondi, QEP’s Law and Dunbar remained school year In the 1989-1990 DOE their QEP rather than by through were by compensated employ $2,031,794 QEP revenues of In that fiscal year reported districts. $108,500 $1,884,156. and benefits of received a of salary of Nancy expenses $18,000. $10,666, received office rental in the amount and the Honigs indictment with four these facts defendant was charged by Based upon by participat- Government Code sections 1090 violating counts interest. Count one state contracts in which he had financial ing making the DOE the Fremont was based contract No. which by paid upon for the continuation of and benefits Unified School District Page’s salary school Count two was QEP while she worked for the 1986-1987 during year. salary based on the extension of contract No. 4127 for payment Page’s school QEP and benefits while she worked for the 1987-1988 during year. 5349, which the DOE Count three was based contract No. upon paid Sweetwater Union School District for the continuation of Perondi’s High QEP and benefits while he worked for the 1988-1989 school salary during Count four was based on contract No. which the DOE year. paid the Pasadena Unified School District for the continuation of salaries and QEP Law Dunbar while they during benefits to worked for the 1988- school year. QEP addition to the and the contracts history question, also established that the contracts at issue arose an unusual prosecution manner. Rather or and then commencing than by application request pro- DOE for ultimate channels hierarchical levels ceeding through up approval, Defendant, as the authority. these contracts arose at the level of highest Education,6 instructed Public Instruction and Director Superintendent his staff to the contracts in It does not that the contracts put place. appear rather, were initiated formal or written by any application request; they defendant’s oral directives to his DOE staff. originated through *21 available, When the DOE it is that school makes grant money customary be or other means of the advertising districts and other notified providers funds. so that and for the availability grant they may apply compete with the But there was no or other notification associated advertising with an contracts at issue here. when the DOE seeks to contract general or is contract to individual it to submit private entity required proposed or to obtain sole-source from the bidding Department public exemption known as Director of 6The DOE is “conducted under the control of an executive officer (Ed. Code, 33302.) officio Superintendent “The of Public Instruction is ex Education.” § Code, (Ed. Director of Education.” made, in were at least nomi- Services. Since the contracts question General DOE local districts were from they exempt between the and school nally, were or a by public bidding and not they accompanied these requirements However, were named as local school districts process. although substitute contracts, to other were not do they anything under the expected contractors funds, benefits, who as individuals the contract salary than pay QEP. for would working the DOE a budgeted there was within
During period question The activities. with over involvement responsibility unit parenting parental at issue. unit did not contracts pro- DOE parenting participate or unit for its recommendation contracts were not submitted to that posed unit, or that unit did not executed that were they approval, prepared The contracts or monitor the the contracts. performance not supervise monitor, Smith, as which was contract identified deputy superintendent, nor else from DOE anyone actually unusual Neither Smith an arrangement.7 of the contracts. monitored the performance supervised here were a number of organizations issue there During period involvement QEP involved in implementing parental besides which were contracts, received None of these grants, schools. programs organizations offered QEP. Defendant forms of assistance like those provided or other QEP while the other organiza- that was resources donating the explanation not how other organizations operated, tions were not. The record does show school districts for its services. QEP does did not charge but it establish donations, as QEP’s derived from grants, private funding revenues were as chief effort with Nancy of what was termed a massive fundraising result fund-raiser.8 QEP, record is involved in defendant was
Although officially told that he informal involvement. He Tramutola evidence replete QEP. Tramutola was Nancy participation had started compensated committee, the qual- defendant’s organizational meetings by campaign early committee. Defendant in the ity early organizational education participated were QEP’s As enterprise developed, headquarters meetings. corporate things responsible for such DOE officer testified that a contract monitor is 7The contracts ensuring performed, performed is in accordance with contract the work that it is manner, specifications, timely invoices are accurate. Smith performed in a and that that it performed none of these functions. 8Eventually beyond of the California began promote programs its the confines QEP *22 system. worked in the Archdiocese public example, school For there was evidence that Law Law, of the state to Angeles employees traveled out of Los and that Dunbar other QEP sought compensation for promote program. The record does not state whether QEP QEP public system. beyond school promoted program when it the California its services its defendant’s residence and wife was chief officer. corporate Defendant would, occasion, QEP on attend Defendant meetings. Nan- participated QEP’s efforts. And he touted cy’s fundraising to educators from program other states.
Based this evidence defendant was found upon guilty the four counts in the indictment. He from the charged order appeals subsequent granting Code, him (Pen. (a).) subd. probation.
Discussion begin We with the definitions of the statutory crimes. Govern- charged state, ment Code section 1090 “Members of the provides: Legislature, district, district, county, judicial officers or shall not be city employees interested in contract financially any made them in their official by capacity, state, or or board of which are by any body members. Nor shall they county, district, district, and officers or judicial at city employees purchasers any sale or vendors [^Q at made any them in their official purchase by capacity. article, As used in this ‘district’ means of the state formed any agency act, pursuant law or general the local special performance govern- mental functions within proprietary (Unless limited boundaries.” otherwise further specified, Code.) section references are to the Government Section 1097 or provides: “Every officer person prohibited laws of by contracts, this state from or making being interested in or from becoming sales, vendor or purchaser from or other evidences of purchasing scrip, indebtedness, including member of the any board of a school governing district, laws, who violates willfully any of such provisions is punish- able a fine of not more ($1,000), than one thousand dollars or in the state imprisonment and is forever prison, from disqualified holding office in this state.” Before we turn to defendant’s on contentions we recount the appeal, purpose, of these scope application conflict-of-interest statutes. We outset, however, caution at the of the cited cases are civil many rather Moreover, than criminal. some of these cases preceded 1963 addition the term to section “financially” 1090 and the addition of the term to section “willfully” 1097. these cases are not on Consequently controlling the scienter or mental state at issue here or on interests which are not Nevertheless, financial in nature. are instructive on the construction and they of other elements of interpretation these statutes.
The conflict-of-interest statutes are based truism that a upon “[t]he cannot person (Thomson serve two masters v. Call simultaneously” *23 314 633, 139, 316]), 699 P.2d which is regarded Cal.3d 637 Cal.Rptr.
38 [214 truth, trite as the law of gravitation a “self-evident as and impregnable 592, (1924) 601 (Stockton P. & S. Co. v. Wheeler 68 Cal.App. . . . .” [229 1020].) P. undivided, loyalty
The duties of office demand the absolute public (Thomson of the individual that holds the office. allegiance uncompromised Call, 648; (1962) v. 58 Stigall 38 Cal.3d at Cal.2d p. City v. supra, of Taft “ 441, 565, 289].) it is 375 P.2d Yet ‘that an recognized 569 Cal.Rptr. [25 can in even the most well-meaning of occur judgment impairment impartial are the business when their economic interests affected by they men personal ” 58 (Stigall Taft, supra, v. City transact on behalf of the Government.’ of 570, Co. Generating States v. Mississippi Valley Cal.2d at United p. quoting 520, 268, 288, 294].) 81 S.Ct. Conse (1961) 364 U.S. L.Ed.2d 549-550 [5 what have might statutes are concerned with our conflict-of-interest quently, (Ibid.) aimed are rather than what merely happened. They happened actually eliminating avoiding appearance impropriety, at temptation, undivided uncompromised of the officer’s assuring government Call, 648.) Their “is (Thomson v. 38 Cal.3d at objective allegiance. supra, p. influence, either or limit the possibility directly to remove personal v. City on decision . . . (Stigall which bear an official’s might indirectly 569, v. People see also original; 58 Cal.2d at italics Taft, supra, p. of Vallerga 847, 429]; v. (1977) People 865 Cal.Rptr. 67 Cal.App.3d [136 860].) (1971) 39 Cal.Rptr. Watson 15 Cal.App.3d [92 statutes, isit well In view of the of our conflict-of-interest purposes fraud, is established that their not limited instances actual scope loss to the and criminal entity, unfairness or dishonesty, governmental is to whether the contract regard question assessed without responsibility (1952) 426-427 fair or v. (People Darby oppressive. Cal.App.2d Thus, are it has held that such matters 743].) P.2d been repeatedly [250 Call, at (Thomson supra, under v. Cal.3d pp. irrelevant section 1090. 865; 648-649; v. People v. at People Vallerga, supra, p. 67 Cal.App.3d Watson, 39.) at supra, Cal.App.3d p. was not the Legislature the conflict-of-interest enacting provisions with the technical terms and rules applicable making
concerned contracts, the conduct but instead to establish rules sought governing 58 Cal.2d at City Taft, officials. (Stigall supra, governmental technical a narrow and given those cannot provisions Accordingly, limit their and defeat scope legislative purpose. that would interpretation 569, 571; Survival v. (Id. City Millbrae Assn. Residential pp. of in Thus, 251].) Cal.Rptr. Millbrae
315
v.
where a
Stigall City Taft, supra,
member of the
council
city
participated
of
matters
preliminary
leading
of a
adoption
contract but resigned
contract,
before the formal
of
award
the court refused to construe the
word “made” in a narrow and technical sense and instead held that it
discussion,
encompassed
planning,
preliminary
compromises, drawing
and solicitation of bids
led
plans
specifications
to the formal
up
571;
(58
Call,
of the contract.
making
Cal.2d at
see also Thomsonv.
p.
supra,
Moreover, prohibited financial interests are not limited to express Rather, for benefit agreements and need not be direct evidence. proven by forbidden interests extend to of benefit expectations by express implied agreement Call, be inferred from (Thomson the circumstances. v. 645; 38 supra, Cal.3d at (1934) v. 2 p. People Deysher Cal.2d 150 [40 259]; P.2d 867; v. People Vallerga, supra, at Cal.App.3d p. People Darby, supra, of financial interests types section are prohibited by 1090 many
varied. We cite a few only representative Nielsen v. Richards samples. 697], P. schools superintendent Cal.App. county wife as teacher of rural into a contract supervising
entered
appointing
that, in
The Court of
concluded
with a
salary
expenses.
Appeal
schools
inherent in a
support
marriage,
view of the mutual obligations
*25
the
had
an interest in
contract even
he
though
previously
had
superintendent
her
his wife under the contract would be
that
earned
any money
agreed
687, 691.)
(Id. at
separate property.
pp.
1095],
P.
a
(1928)
county
In
v.
supervisor printing The a chattel in son then note secured by mortgage payment. promissory the contracts. The Court held since county Supreme obtained printing business, to enhance the value the and contracts could serve printing the had a conflict of of the chattel mortgage, supervisor hence the security (Id. 105.) at with to the contracts. p. interest respect printing In 114 the defendant member of supra, v. People Darby, Cal.App.2d a leased his commercial at generous a local board of education property inferred, who, for a it could be acted as an agent rental to an individual then in ice cream business. The defendant partici- the partnership engaged a that resulted in the securing in official actions partnership’s portion pated as landlord in cream business. The defendant’s interest of the district’s ice held a as a of his was to be the tenant partnership’s property permanency 429-430.) (Id. under our conflict-of-interest laws. interest pp. prohibited Watson, In v. the defendant member People supra, Cal.App.3d for the loaned to an individual money the board of harbor commissioners which individual to use connec- planned of a license the purchase liquor owned tion a restaurant operated by solely corporation. with floating lease in the to the a defendant then decision grant corporation participated the lease would enhance for harbor berth. The court concluded and loan facilitate its repayment, for the defendant’s prompt security (15 under section 1090. Cal.App.3d was thus a financial interest prohibited 37.) at p. county
In the defendant People Vallerga, supra, Cal.App.3d former assessor demonstrations county assessor participated to purchase from state was convinced which an assessor another meetings by The former from the county. the county’s computer program appraisal $6,000 fee execution upon as a consultation paid assessor was county $3,000 for his assessor county participation. and he purchase paid the former asses only the out-of-state assessor had agreed pay Although sor, he decided split the former testified that had just assessor been no whatsoever to understanding pay and that there had payment assessor, that the was sufficient to permit the court held evidence county financial the fee that this was infer a prohibited promise split jury (67 at under section 1090. Cal.App.3d interest Del Inc. v. Norte County Fraser-Yamor Agency, 118], board a member county Cal.Rptr. and, was a shareholder an upon incorporation, partner supervisors of insurance agent insurance that acted agency procurement did not share in the commissions Although county supervisor county. to defray those were not used from the business and commissions county’s overhead, he had interest the court concluded that a financial agency’s *26 had he has an the of section 1090 because “has and meaning within the and shareholder investment in represented by partnership agency from which it interests. His interest in the and in contracts agency any one the financial derives a benefit is a financial because clearly pecuniary success, turn, success of the inures to his benefit. Such personal agency (68 at p. enhances the value of interest in the agency.” [his] 215.) a signifi- addition authorities section judicial interpreting indication of intent section 1090 legislative
cant with respect scope 1090, it can be derived reference to sections and 1091.5. Section has said, is an to conflicts of been embodiment of common law respect Wheeler, (Stockton interest. P. & S. Co. v. at The supra, p. Cal.App. interest, “other than any courts construed that to include provision broadly interest,” a remote or minimal influence official might duty. which perhaps 569.) In sections 1091 and City Cal.2d at (Stigall Taft, supra, 1091.5, the and minimal interests which has for remote Legislature provided be deemed interests of section will not to be within the prohibitive scope 1090. or member of a board body
Section 1091 to an officer who is a applies authorizes, not be ratifies a Such an officer will or contract. approves or her is one deemed to be interested in a contract if his interest section, disclosure of interests set in the the officer makes full remote forth interest, not influence or abstains from the officer does officer voting, authorizes, member, influence or board body other attempt any vote or ratifies contract in faith of its good membership approves vote of with the for that without the officer counting sufficient purpose since, among interest. is not here applicable remote Section 1091 arguably did not disclose his interest the contracts issue other defendant things, the contracts.9 made the decision create personally which, a list of interests based provides upon quantity Section 1091.5 to the contracting of the interest and the officer’s relationship and quality meaning be interests within the are not to deemed to be party, prohibited interests, The of such which be termed minimal section 1090. list interests, only of landlord and tenant in limited includes the relationship 1091.5, (a)(4).) here. subd. The (§ circumstances which are not applicable officer in a where employment only list includes the interest an spouse’s held an or of a and has public agency officer spouse employee to the officer’s election or year appointment. for at least one position prior 1091.5, circum- (a)(6).) list that under certain (§ subd. also provides stances, made, as full disclosure is an officer’s interest and provided member of a a noncompensated nonsalaried nonprofit corporation will not deemed an corporations officer certain nonprofit, tax-exempt 1091.5, (a)(7) (8).)& these nor (§ 1090. subd. Neither interest under section are arguably of the other minimal interests set forth section 1091.5 in this case. applicable have remained relatively
While the of sections 1090 provisions *27 not been idle. with over the the has years, Legislature static few amendments has, of where deemed altered the scope it Legislature appropriate, For in sections and 1091.5. by amending example, section the of a that a is interested in parent earnings to the determination response (5 (1945)), the Leg- minor child for services personal Ops.Cal.Atty.Gen. 1091, as that interest (b)(4) islature added subdivision section classify officer if the interested a remote interest which will not violate section 1090 of section 1091. the abstention disclosure and requirements complies Norte, Del County the decision in Fraser-Yamor Inc. Agency, After of 201, 1091 to classify the amended section Legislature supra, owner, officer, of a an or agent a remote interest the interest of employee as services, stockbroker, or real estate provided firm which insurance provides consideration, remuneration, or a has and will not receive the individual in parent of the 9The list of set in 1091 includes interest a remote interests forth section a include interest of an officer earnings for of minor child but does not personal services 1091, However, (b)(4).) spouse. (§ list include the interest earnings a subd. does in the of inferentially include the employee nonprofit corporation would of officer or of a and an 1091, (§ (b)(1).) subd. employee corporation. of of officer of such a spouse interest an or 1091, (§ subd. contracting party. a or It also the interest of landlord tenant includes However, (b)(5).) and did personally here the decision to make the contracts defendant made spouse was He did to his staff that his objections so over the of his staff. not disclose Moreover, decisions to during period of time defendant made the compensated by QEP. report Nancy’s he income from question QEP the contracts in did not his interest make annual statements to the Fair Political Practices Commission. 1091, (b)(6).) result contract. subd. other (§ Among as the of the commission an or the interest of officer employee has classified things, Legislature or tenant of the and the interest of a landlord a nonprofit corporation 1091, (5).) And, (b)(1) subd. & as (§ as remote interests. contracting party noted, minimal has as interests under have classified Legislature we 1091.5, is in a if the employment section an interest spouse’s employment to the year a and has existed at least one officer’s prior with public agency member of a or the interest a nonsalaried nonprofit election appointment, of a officer of certain non- and the interest noncompensated corporation, 1091.5, (8).) (a)(6), (7) subd. & (§ corporations. profit, tax-exempt section we find evidence in support light scope As convictions to be even we shall compelling. of defendant’s ample, clearly financially he was interested Nancy’s employment explain, QEP, QEP as in from remuneration as well the rental payments noted, As we it been held that have has Honigs jointly. long person’s interest within the interest and income an spouse’s employment an of section 1090. has acted exclude meaning Although Legislature interest in in certain from the section 1090 spouse’s employment scope circumstances, limited those circumstances are not here. applicable arguably 1091.5, (a)(6).) QEP no was a (§ subd. It makes difference nonprofit since a as a member or officer of a corporation, position nonprofit corpora tion is excluded from when the is nonsalaried only position section 1090 if as the disclo be treated a remote interest noncompensated may only (§§ met. subd. requirements sure abstention section 1091.5 are 1091.5, (b)(1), (a)(7) (8).)& interest a landlord subd. And an (b)(5).) treated as remote with disclosure abstention. subd. only (§ QEP as a shell Defendant’s interest was substantial. mere clearly began *28 and, his after defendant’s election corporation shortly during incumbency, into with a substantial millions dollars grew organization nonprofit and, QEP QEP revenue. was the chief officer of as Nancy administrative to and grew, Nancy began escalating compen- receive substantial annually in sation the form of and and the received Honigs jointly benefits salary in substantial and for the offices their payments rental escalating corporate addition, QEP’s residence. In would be reasonably growing it likely success the in which was assistance during defendant periods providing not to his immediate but through DOE contracts would inure benefit only the a source income into indefinite family could of substantial provide future. contracting
The fact various districts were the nominal school parties the Before the the does the force of evidence. with DOE not diminish DOE, involved, the issue were made the individuals by Page, contracts at Perondi, Law, QEP QEP. to for They Dunbar and were hired work QEP, QEP, with to and solely executed agreements reported employment QEP’s indicia the only work. All the save performed only employment, QEP their for their as funding compensation,10point employer. source of interest we cannot focus an isolated “con- upon In conflicts considering Call, (Thomson supra, and as a whole. v. tract” the transaction ignore 644-645.) the DOE funds to at It clear that the Cal.3d pp. appears payment districts, in QEP of those funds to school the districts’ payment employees benefits, and work for form of continued salaries and employees’ (Id. 644.) at QEP, were in of single multiparty agreements. p. performance short, district as conduits to defendant used school contractors simply as for his wife’s DOE funds to individuals working funnel compensation The use of a third as a contractual conduit does employer. party corporate (Id. in at avoid inherent conflict of interest such transaction. p. not 646.) QEP not which it did fee to the districts in charge operated fact that recounted, we in alleged
does not exonerate defendant. As have considering veil which enshrouds the of interest we will look behind the conflicts is connected to and will find a conflict if officer activities of parties transaction, the trail be. a forbidden however devious and winding Watson, 37.) here is trail supra, Actually, (People QEP its revenue from school not all that devious and did derive winding. districts, what called a massive effort fundraising but instead in was engaged and with the significant participation fund-raiser Nancy primary without workers Without a and of defendant. purpose program QEP’s efforts would fundraising the program, field attempting implement (See been could even have become unlawful. have inhibited and severely 6321-6324, Code, QEP Thus had to have 12580 et seq.; Corp. §§ order some some workers involved the field implementing program QEP itself both in grew, As established and very maintain its existence. of its assets and revenue terms of its terms program purpose and continuously escalating received substantial through fundraising, Nancy substantial and benefit received salary payments Honigs jointly defendant directed rental this same escalating During period payments. QEP would be used to pay contracts which DOE funds arrange staff *29 QEP The conflict QEP, the saving to work for thus expense. employees increased, case, agreed it was Page’s responsibilities as role 10In her and QEP through difference greater compensation up and made the she should be entitled to QEP for payments use of her residence wage payments and rental the supplemental QEP However, paid Page’s compensation was during period question the bulk of business. the through the DOE the Fremont Unified School District. is not difficult of interest inherent that situation particularly perceive. QEP its more funds of the burden of own relieving paying employees, By of defendant’s wife and the rent for the use were available to the pay salary home. The violations of sections and 1097 are estab- of defendant’s QEP the fact of defendant’s financial interest at the time he lished by QEP official contracts that benefited and benefited made directly indirectly or excuse has been advanced himself and his wife. No plausible explanation to avoid the of those facts.11 impact established,
In view of the law and the facts we evidentiary applicable In must with defendant’s assessment of the case him. his disagree against QEP brief defendant asserts that the benefits derived and the opening unmeasured, remote, from the contracts at issue were incidental and Honigs Defendant refers to charges unprecedented speculative. unique all, if To evidence was sufficient. suggests barely, we find the evidence to be and over- relatively straightforward contrary, In the of the law the conflict-of-interest statutes whelming. light governing we have recounted at some we turn to defendant’s just length, specific contentions on appeal. Jury
I. Instructions Defendant launches a series of attacks on the instructions. appellate jury is the trial court failed to He first contends that reversal because required instruct as to one element of the offense and totally jury charged view, misinstructed the as to a second element. In his jury prohibited financial interest must have a foreseeable material effect on the public officer’s source of income and thus the court erred in to instruct on failing DOE, fact, QEP, Legislature contemplated involving 11In has situations like that 1090, providing defendant. In a list of minimal interests that do not violate section Legislature noncompensated nonprofit, tax-exempt corpora “That of a included: of a officer tion, which, body primary purposes, supports as one of its functions of the or board or to consideration, body legal obligation give particular provided which the board has a 1091.5, (a)(8).) (§ further that such interest is noted in its official records." subd. Legislature did not from situations in which an choose to exclude the reach of section 1090 compensated by organization, although in such spouse officer and/or or her are such an meaning if the circumstances the interest be treated as remote within the of section 1091 (§1091, complies requirements of that section. officer with the disclosure and abstention expressio (b)(1).) thing unius est exclusio alterius (expression of one is the subd. The maxim another) statutory express statutory pursuant exclusion of a rule of construction to which an (Wildlife rule, general by necessary precludes exceptions. exception implication, to a other People 537]; Chickering (1976) ex Alive Cal.Rptr. 553 P.2d 18 Cal.3d 195 [132 short, 828].) we rel. Cranston v. Bonelli Cal.Rptr. Legislature when has from the reach of section 1090 cannot exclude defendant’s conduct take to more limited than it would considered the situation and enacted an exclusion far exclude defendant. *30 the court’s instruction Defendant further contends materiality. the element of possibility interested” included “the contingent that the “financially phrase benefit,” and “actual or potential pecuniary of or monetary proprietary officer,” state lowered the erroneously benefits or directly indirectly that contracts in standard from a to a mere possibility probability Neither contention is would have financial effect on defendant. question any meritorious.
A. The Measure Financial Interest of accor- In the court defined the offenses in instructing jury charged who, as state Officer dance with sections 1090 and follows: “Any to makes or causes be made a his official who capacity, willfully acting is a of he a interest of violation contract in which has financial guilty order to such a Code sections and prove Government 1097. [5D crime, (1) that the elements must be proved: person each the following [5D officer; (3) (2) official capacity; a state acted person [50 is [50 to made made or caused be willfully that the and knowingly; person [50 court instructed he a financial interest.” The further a contract which had stan- with the willfully and accordance knowingly on definitions con- defining instruction gave special dard CALJIC instructions did not have to that the prosecution tract.12The court also instructed the jury unfair, fraud, loss, or were unjust or or that the contracts dishonesty prove fraud, was no actual it not a defense that there that was inequitable, or or that the contract was fair just, equitable. loss dishonesty court “The instructed: With to financial interests respect prohibited section in Government Code interested’ used phrase ‘financially with a state officer’s financial interest which interfere might means any be direct or The interest duty. devotion his public unqualified benefit, sort any or or monetary gain indirect. It includes any proprietary benefits. The interest or monetary or the contingent proprietary possibility officer, with does business capacity, direct when the state in his official is officer, state is indirect when the in his The interest private capacity. himself knowledge of the existence ‘knowingly’ word means with 12These instructions read: “The any required. or omission is not question. Knowledge of the unlawfulness of act of the facts in specific any with knowledge act must done requirement does mean [A (5th vol.) (hereafter 1.21).) (CALJIC No. “The CALJIC 1.21 ed. 1988 bound No. intent.]” act done or omitted means ‘willfully’ applied when the intent with which an word question. The word willingness or to make the omission in purpose commit act another, law, any injure acquire or to ‘willfully’ or to require does not intent violate ‘contract,’ vol.).) (5th as used in (CALJIC “The term advantage." No. 1.20 ed. bound instruction, thing. certain The essential agreement to do or not to do a foregoing means an [50 [50 [50 consent; 3. A contracting; 2. Their capable Parties elements of a contract are: I. 4. A sufficient cause or consideration." No. object; (Special instruction lawful
323 directs, in his or its official capacity enters into a contract he or agency or reason of state entity, by or which individual entity, an individual or at the time the contract—at entity the individual officer’s relationship into, or to render actual is in a position the contract is entered the time on based or to the state officer indirectly benefits directly pecuniary potential has been instruction or has received.” This entity contract the individual sections 1090 for violations of for use in prosecutions judicially approved 433-436, 114 at espe v. Darby, supra, Cal.App.2d pp. and 1097. (People 867; 4; at v. Vallerga, supra, Cal.App.3d p. fn. see also People cially Watson, 37-38.) supra, pp. v. People in contract “An official has a financial interest a The court also instructed: Code section if it is reasonably of Government within meaning [sic], affect distinguish- contract have a financial foreseeable that the on source of income any from its affect on the public generally, able [sic] a instruction initially the official.” This instruction was based upon special The instruction as defendant with which the court disagreed. requested in “An has financial interest a official originally requested provided: if it is within the of Government Code section 1090 contract meaning effect, will have a material financial foreseeable that contract reasonably on source of from its effect on the distinguishable public generally, When the court indicated that it would not give income official.” trial in it instruction as defendant modified it to the form which requested, was given. modification of his re
Defendant contends the compelled “will instruction in that it substituted have” for “may was erroneous quested view, to be have" and omitted the word “material.” defendant’s qualifying of section 1090 it interested a contract within the financially meaning effect the contract will have a financial must foreseeable that reasonably material, must be on a source of income of the official and the effect or “a “a financial effect of real or meaning great consequence,” importance effect on a source of income.” significant of section This
We 1090. reject suggested interpretation defendant’s having any an official from has been as long interpreted prohibiting section contract, (See Stigall City or indirect. financial interest whether direct amended the the Legislature 58 Cal.2d at Taft, supra, Although interests,13 that it was concerned with financial statute 1963 to clarify interests financial has never seen fit to Legislature qualify proscribed being original prohibited “interested” 13In section an official from its form Organization presumed report Assembly on Government contract. In a Interim Committee specif- it be amended to proscribed interests but recommended that that the statute financial “material,” “substantial,” “direct,” “significant,” such with modifiers *32 Watson, “certain,” (See v. supra, and the like. People “probable,” 34, 1.) fn. p. at Cal.App.3d of section 1090 of defendant’s adoption suggested interpretation of the statute’s prophylactic toward evisceration long way
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What is material to some persons may regarded *33 trivial sums relatively and some officials bemay tempted by others public of even others be resistant the incorruptibly promise significant while of significant But section is not directed at gain. actuality personal 1090 influence; it is directed mere of such influence. possibility instead at the 569.) 58 at To onto the statute City engraft v. Cal.2d (Stigall Taft, supra, p. of substantial, material, fiat as relative terms such judicial significant like, absolute, would would less than inject questions make standard of its and would of influence into actuality application, open improper official from “ambivalent and “ambigu door to contracting position[s]” a be the statute seeks to Such result would ous which prevent. situation[s]” inter to the terms of the statute and to the contrary long-standing judicial of no such a those terms we reason undertake pretation perceive of fundamental reconstruction the statute. him
We also defendant’s assertion that the court erred reject requiring it be foreseeable that require reasonably instruction that modify a a source of contract have” rather than “will have” financial effect on “may absolute, of a income. The undivided government’s right allegiance officer is as officer with a hope diminished where the acts public effectively Watson, as acts with v. certainty. (People of financial where he personal gain 38; at 114 Darby, p. 15 at v. supra, p. People supra, Cal.App.2d Cal.App.3d of 435.) scope our courts assertions that the long rejected have Accordingly, Call, (Thomson supra, to direct or certain v. section 1090 limited profits. 865; 644; at Vallerga, supra, Cal.App.3d p. 38 Cal.3d at v. 67 p. People 425, 435.) trial court v. 114 at Darby, People supra, Cal.App.2d pp. meaning financial within the instructed the that a interest jury properly be direct or indirect and includes the contingent possibility section 1090 may supra, Cal.App.3d or benefits. v. monetary (People Vallerga, proprietary Watson, 37; 865; Darby, v. supra, 15 at People Cal.App.3d p. People at p. The court was not to contradict required supra, that find and certainty this instruction directness by interjecting questions in the or authorities. no statute decisional place form, instruction, in its original
Defendant asserts his requested Reform Act of 1974 of the Political was from section a adapted part PRA), as the 81000 et hereafter referred to claims (§ inferentially seq., definition PRA must as regarded having superseded judicial that the be prior Indeed, his of section 1090.14 whole that the argument prohib- constructions must have a material effect on charged ited interest in the crimes financial income the official or his rests on the claim that the PRA family are materia with the conflict-of-interest statutes. charged statutes in pari this defendant reasons that interested” “financially From premise, phrase be same interest” in in section must definition “financial given PRA, which “material financial requires foreseeably section 87103 or his so his goes, on the official family.15 Consequently, argument effect” to mean the contract must section 1090 must construed question trial, “An in a provided: section has a financial interest 14At the time of official meaning reasonably if it is foreseeable the decision decision within the Section 87100 effect, on distinguishable public generally, effect on the will have material financial from its (a) family Any entity in official or of his or immediate or on: business [QQ a member her worth one dollars public which the official has direct or indirect investment thousand ($1,000) (b) Any property public real in which the official has a direct or indirect more. [QQ income, ($1,000) (c) Any other than interest worth thousand dollars or more. source [QQ one *34 regular gifts by lending a in the of business and other than loans commercial institution course status, public regard aggregating two hundred on terms available to the without official to, ($250) by promised public in or to the fifty provided dollars or more value received (d) Any prior to the made. business [OH official within 12 months the time when decision is director, officer, trustee, employee, or holds entity public partner, in official which the is a of, intermediary management. (e) Any any agent or for a donor any position of donor or [QQ to, of, ($250) gifts provided in gift aggregating fifty a or two dollars or more value hundred the by, public prior the within 12 months the time when promised received or official section, any purposes investment or means decision is made. For of this indirect interest [QQ official, by agent an by dependent public or owned or child of a spouse investment interest official, official, entity or in which the public by on behalf of a business or trust a beneficially indirectly, a agents, spouse, dependent directly, children own or official’s 611, (Stats. 1985, 1.5, 2179.) greater.” p. 10-percent or ch. interest § effect on general a of “financial interest” measured an provides Section 87103 definition provides specific persons, list of entities family, officer or or her immediate and then a an his officer, an effect on the thus upon and interests which a financial effect will be deemed to be interested, effect officer or rendering financially regardless specific of its on the officer includes, (c), in family. in source of income subdivision an effect on his The list defendant, of both in terms aggregate $250 sum or more. a source income for was QEP community Nancy’s rental salary in and benefits and in terms substantial interest Honigs pay employees, thus payments jointly. it The use of DOE funds to QEP made to the Accord- unquestionably effect on sparing expense, had material financial QEP. QEP 87103, had no ingly, fully in it would have jury if the had been terms section instructed requested by jettisoned defendant guilty. choice but to defendant to be The instruction find retaining might have been portions portions section while unfavorable 87103 Even objective diminishment of standard section 1090. through favorable the absolute agreed prosecution in a under sections if we with defendant that 87103 has relevance section 1097, definition only partially instruction reflects the we would not sanction an of a financial interest set forth section 87103. themselves, defining regulations 15In PRA there are several addition to the statutes California These to be found title “material financial effect” in various contexts. are Regulations, seq. Code of section et on a official’s source of income material effect public “have a foreseeable interested in the contract.” deemed to be financially the official is before withstand omitted.) scrutiny. The claim cannot (Italics “ manner; means the same on “in materia” The phrase pari ‘[o]f ” Store, De v. (Altaville Employment Development Inc. Drug subject’ same 231, 236, 746 P.2d fn. 4 (1988) Cal.Rptr. 44 Cal.3d [242 partment statutes pari rule of construction 871]), governing and the statutory to related statutes. reference of interpretation materia describes process construed— the one being the same subject dealing “Other statutes form of another to as statutes in materia—comprise referred pari commonly However, in line of interpretation. useful in deciding questions extrinsic aid aids, not be statutes of extrinsic other rule on the use with the basic Sutherland, Statu (2B and unambiguous.” to if the statute is clear resorted 51.01, 117.)16 1992) (5th ed. p. Construction tory “ relate they to be in materia when ‘Statutes are considered pari or have class of things, or to the same thing, persons [or] same person more or of the object purpose Characterization object. same purpose whether matter in determining than characterization of subject important one in related to interpreting statutes are closely enough justify different ’’ 112, 124, fn. (Walker Court 47 Cal.3d Superior of the other.’ light Sutherland, 852], Con Statutory 2A 763 P.2d quoting Cal.Rptr. Section and section (4th 1984) §51.03, struction ed. statutes California PRA are two of the most important 87100 of the officials and employ conflict of interest by public addressing problem *35 officers public with small class of relatively people, ees. both deal a They the of prevention the same purpose objective, and and share employees, (See interests, be in materia. hence can be said to pari conflicts of and fairly 41, (1982).) 57 65 Ops.Cal.Atty.Gen. materia, be construed together in should they
When statutes are pari 4 (1992) Administration Beach v. Board Huntington as one statute. (City of of 514, “. . . 462, 1034].) So 841 P.2d interpreted, 468 Cal.Rptr.2d Cal.4th [14 in a manner be read and construed all of a statute should together parts each, (Ibid.) with the others.” does not lead to disharmony effect to yet gives “only where pari applies materia authority proposition that the rule of in 16There is for the Employees’ County (Guelfi Marin statute, alone, ambiguous or unclear.” v. the taken is accord, Miguel 343]; San 297, (1983) Cal.Rptr. Retirement Assn. 145 307 [193 134, Cal.Rptr.2d (1994) 154 Dist. v. Davis Cal.App.4th 25 Consolidated Fire Protective [30 though a recognition that “even 343].) high authority tempered is court’s But this face, closely light in of it is considered unambiguous on its when may appear statute to be with, controlling may emerge legislative purpose that is inconsistent statutes a related (Droeger v. over, of the law.” to the entire scheme language read without reference 931].) Friedman, 584, 26, P.2d (1991) Cal.Rptr. 812 Sloan & Ross 54 Cal.3d 50 [283 328 however, mean, construction not that one
But this rule of does statutory a one. It means ignored definition be different statutory replaced by in each . . materia must harmonized with pari that “. code sections only . (Pacific County . . Co. v. Realty other the extent Southwest possible 155, 536, P.2d (1991) Cal.4th 820 Los 1 169 Angeles Cal.Rptr.2d [2 of rule, 1046].) the courts must scheme under harmonizing statutory here, (Oden one statute another. v. urges avoid what defendant nullifying (1994) Cal.Rptr.2d Administration 23 Cal.App.4th Board [28 of 388].) all, materia, “is that the The rule of in after a corollary principle pari is intent.” (Droeger of to determine statutory legislative goal interpretation Friedman, Ross, 51.) As shall & 54 Cal.3d at we supra, v. Sloan see, of scheme conflicts interest regulating there is nothing statutory of a “financial interest” that the intended definition Legislature suggest of “finan of the PRA to the settled definition in section 87103 supersede defined, the not statutorily interested” section 1090. cially Although a con comes settled judicial interested” “financially freighted phrase has become as much This established construction firmly judicial struction. had “The as if it written by Legislature. a of statute part it, .” a . . statute decision becomes by judicial part construction accord, 393]; (1954) People 43 Cal.2d P.2d (People v. Hallner [277 838].) As Cal.Rptr. v. Kain 212 Cal.App.3d construed, interested” “financially consistently repeatedly not does require contract within the section 1090 meaning source of have material effect on the official’s public interest prohibited interest, one, the official a remote which would prevent income. Any except interest undivided to the best from absolute exercising loyalty allegiance City Taft, supra, the statute. (Stigall of the state under prohibited 569; interested” Since the “financially Cal.2d at p. phrase interest” in section does mean the same as a “financial thing PRA, of an in not be rewritten under the guise section 87103 it should materia construction. pari other reasons claimed *36 why suppression
There are compelling “It is of the PRA must be rejected. section section 87103 1090 settled, also, that is is controlled one special, well that general provision to former. A latter treated as an being specific provision exception as to that subject, will relating subject govern respect to particular alone, latter, be would standing against general provision, although the more subject particular provision to include the to which enough broad 713, (1942) 723-724 (Rose 19 Cal.2d [123 relates.” v. State California 638, P.2d 24 644 505]; (1944) Cal.2d Moroney [150 P.2d see also People 888].) than the conflict-of- are more specific and 1097
Sections 1090 making The former specifically apply of the PRA. interest provisions making, latter to apply participation contracts while the of governmental influence, any to to use an official position way attempting making, any a contract 87100.) making definition of While the (§ decision. governmental 1090, broad as the not as nearly it is under section broadly is defined the PRA are aimed. the conflict-of-interest provisions at which behavior Political Practices & Econ. v. Fair Org. on Cal. State Gov. (See Commission 716, 468].) Since sec 721-724 Cal.Rptr. Com. 75 Cal.App.3d of official and limited form are aimed at a more specific tions and 1097 be considered must officers and employees, they behavior by public in which in the circumstances and thus controlling legislation more specific they apply. provisions a violation of the conflict-of-interest
Defendant out that points (a), and subdivision PRA a under section of the is misdemeanor can and 1097 that a violation of sections 1090 felony asserts that it is absurd interest, small or financial however committed where an official has any violation of the PRA requires in a contract while a misdemeanor contingent, the breadth of section Such an ignores a material financial interest. argument which, noted, behaviors a broad range as we have applies of sections Since a violation associated with decision. any governmental contracts, it can occur with to the making and 1097 only respect more financial harshly any unreasonable for the Legislature not proscribe interest in the contract made. being event, that what he is not in a to contend position defendant any At the of the PRA are controlling. as the more lenient provisions
perceives the contracts at issue here section 87102 provided: time defendant made addition to the requirements “The of Section 87100 are in requirements to conflict of and 3 [relating Articles disclosure [relating interests] Interest Code adopted of this Conflict of interest chapter codes] However, 3 (commencing remedies in chapters thereunder. provided the Fair Political 83100) administrative actions by with Section [relating 91000) [relating Section and 11 (commencing Practices Commission] state to elected shall not be to criminal and civil applicable enforcement] (Stats. violations of this article.”17 officers for violations or threatened PRA, 1029, 1, the remedial provisions ch. Accordingly, here, section Legislature amended the contracts at issue 17In after defendant made applicable to elected provided chapters 3 and 11 are provide that the remedies 87102 to makes the remedies Section 87102.5 provided in section 87102.5. except state officers *37 The circumstances. Legislature in certain chapter applicable to members of the provided in provided chapter in remedies Legislature to make the also enacted section 87102.8 criminal are not to defendant provisions, applicable the including that a criminal that concluding provision no basis perceive conduct. We one that does. To the extent defend- not defendant supersedes does apply immunizes that PRA elected state officials from the suggests ant’s argument interest, note by for conflicts we that simply repeals criminal prosecution (1979) not favored Cal.3d (Hays are Wood implication 19]), in find the PRA to nothing support 603 P.2d we Cal.Rptr. result. such a
Moreover, PRA is the that it not exclusive. specifically provides in or this title “Nothing prevents Legislature any Section 81013 provides: on local from additional imposing requirements any other state or agency with if the do not from prevent person requirements person complying with of this this title. If act of the conflicts the provisions any Legislature terms, title, its such as a this title shall additional prevail.” By requirements, interested, which is contract in one prohibition against making financially conflict with the PRA if those only requirements prevented would Since in section 1090 would nothing official from the PRA. complying PRA, inhibit or from with the it cannot be an official prevent complying that considered to be conflict with act.18 with, the PRA as and thus section superseding,
To consider conflicting lenient standard with respect 1090 because it invokes a more supposedly It would essen- would absurd consequences. conflicts interest produce section, section 81013. Pursuant to that the Legis- rewrite and nullify tially standards, or immunizing lature lesser such cannot impose exempting (See some officials from the of the PRA. also public requirements (b) PRA a statute that becomes repealed by subd. amended “may [the electors.”].) when But if we concluded that effective only approved standards, then section 81013 cannot more impose stringent Legislature cannot Legislature impose would be construed to effectively provide Moreover, it is of what says. additional which the any requirements, opposite PRA on its by making such a stand the head essentially construction would assuring bill of rights, it in the nature of a official’s public something the PRA. not proscribed by officials that conduct they may engage PRA such a construction. Nothing supports noted, 1090 has been established long As we have of section scope it deemed Legislature appro- has remained static. Where the has relatively that section amending it has of section 1090 not scope altered priate criminal law applicable specified in certain to elected state officials circumstances. officials such as defendant. provisions chapter applicable 11 are still not to elected state it itself states that defines noteworthy this connection section 87103 18It provide purport 87100” thus does meaning financial interest “within the of Section scope all-encompassing of section 1090. an definition which would conflict with
331 to exclude certain interests from sections 1091 and 1091.5 amending but by 1091.1, 1091.2.) the PRA (See also Since was reach of section 1090. §§ 1974, has amended section initiative measure Legislature adopted 1, 2264-2266; 1980, 1977, 706, Stats. ch. (Stats. ch. nine times pp. 1091 § 451, 1, 1821-1822; 1984, 263-264; 1982, 110, 1, ch. Stats. Stats. pp. pp. § § 1987, 847, 1, 2697-2699; 360-361; 113, 1, ch. Stats. Stats. pp. ch. pp. § § 1593, 1, 7653-7655; 1, 2908-2910; 1990, 1990, 565, Stats. ch. pp. ch. pp. § § 1176, 341, 1991, 1991, and has § 1), Stats. ch. amended § 1; Stats. ch. 1975, 611, 1, 1334-1336; (Stats. ch. Stats. section four times pp. 1091.5 § 1980, 110, 264-265; 1977, 706, 2266; Stats. § 2, ch. Stats. ch. § 2, pp. p. 1991, 382, (Stats. 1). amended section 1091.1 ch. The has also Legislature § 1975, 24, 6, 30), renumbered section 1091.2 ch. and enacted and then p. § which, 56, 1985, 910, 1, 2904; 1987, 57, 173), (Stats. Stats. ch. p. ch. § manner, In a in a more limited also modifies the of section 1090. scope so, limited situation where it deemed it to do the Legislature appropriate PRA, to the scope section into an incorporated exception 1091.2, (b).)19 and the amendments (§ section 1090. subd. These provisions, thereto, no in reference to section have 1090 meaning except construed of that statute. This is strong long-standing, judicially scope evidence of a and intent that section contin 1090 legislative understanding of conduct for ues as viable and standard independent governmental reasons, officials. For all of defendant’s in materia these we reject pari argument.
Defendant further of the court’s instruction complains primary noted, instruction was taken financial interest. As we have this defining from v. at footnote People Darby, supra, Cal.App.2d page at was v. People Vallerga, supra, page judicially approved Cal.App.3d Watson, 37 and 38. In 867 and People supra, pages B,A, instructions, as instructions the trial court three identified Darby gave C, defendant was taken and the instruction here and given challenged by also A.20 Defendant contends that the court should Darby from instruction B and C. have instructions given Darby grant apply any contract or made provides: 19Section “Section 1090 shall not 1091.2 15030) (commencing with Section
private industry pursuant Chapter councils established Code, following conditions Unemployment unless both of the of Division 8 of the Insurance by any (a) directly provided member grant or bears on services to be are met: contract [<]Q represents or industry any organization which the member private of a council or business or organization or which grant financially benefit the member or business the contract or would (b) industry comply member fails to represents. private The affected council member [<]fl with Section 87100.” “ 20Darby A, Code Section ‘The word “interested” as used in Government instruction read: might interfere with a any Code Section 1011 means influence which 1090 and Education duty. direct or indirect unqualified public The interest board member’s devotion to benefits, sort, any contingent or the monetary gain or proprietary and includes *39 Darby on B and C in contended that instructions appeal The defendant The the with A. Court of said that trial Appeal inconsistent instruction were C, B if in instructions and and that even there was giving court was generous because instruction A was the a there was no cause for reversal conflict People 435-436.) In (114 correct at statement of the law. Cal.App.2d pp. Watson, supra, is the court held that it not error page Darby C, a B and since those for trial court to refuse to instructions give set forth a more limited definition of conflict of interest than that instructions a state- in the statute while instruction A is and correct complete specified that of law. Pursuant these authorities we defendant’s claim reject ment Darby B and C. trial court should have instructions given the is that the trial court prejudicially Defendant’s next contention in as to the mental state necessary erred inconsistent instructions giving and a violation sections 1090 1097. It did so instructed the on criminal intent. general by
The trial court jury vol.) (hereafter CALJIC No. (5th CALJIC 3.30 ed. bound No. using _,_, “In in 3.30), which reads: the charged Count[s] crime[s] member, in his pecuniary The interest is direct when the board possibility of benefits. HD [DQ capacity. indirect capacity, private business with in his The interest is official does himself firm, capacity a in official with a business when the board member enters into contract firm, relationship to it at the time by business reason of the board member’s which awarded, potential member position is is in a to render actual or benefit to board contract ” has received.’ on the contract business firm “ Darby guilty ‘In . of the crimes provided: B order to find the defendant. . instruction indictment, certainty you beyond a to a moral alleged in must find reasonable doubt and alleged in Counts pecuniary proprietary “a or in the contracts that the defendant has interest” I, had find the defendant. . . “a II and III the indictment. It is not sufficient to [*]D general question or possible, contingent or interest in the mere interest” “mere mental you guilty In under count must find subject” of contracts. order to find the defendant such or “gain was such that he stood to lose alleged in the contracts interest [defendant] ” something” alleged.’ as a of the contracts result “ by is law to Darby prohibited ‘The which provided: instruction C interest in contracts “(1) contingent possible, not A mere governing bodies of school districts is members of interest, relates, question subject . . . general or to which matter but in an interest visible, upon depend contingent capable precise proof... is it must therefore one that (2) pecuniary or capable being proved ... It must be a precisely averred and facts interest, . something by or the result. . by gain which he will lose proprietary a relation ... certain, which merely possible . mere mental interest must not . . “Thus the [SD It be body to or of the civic public question merely he is citizen member one has because [tjQ law The interest question is which the has mind.” by affected not the interest “rettiote, speculative” but must be “certain fact." prohibited by law cannot be doubtful “certain, definable, [DQ pecuniary proprietary or interest or prohibited by is a interest law question. It directly by on contracts in is the action taken relation which will be affected” immediately dependent personal right privilege directly affected or “pecuniary or direct, short, must be “a question. prohibited the interest law upon the contracts in Hfl ” (114 fn. speculative.’ Cal.App.2d at pecuniary and not an interest that is interest” _of information, and_, [namely,]_,_, there must exist a union or of act or joint conduct and operation general criminal intent. To constitute criminal intent it is not general that there should an necessary exist intent to violate the law. When a does person intentionally that which the crime, intent, law declares to be a criminal acting general [he] [she] he even know that act or though may conduct is unlawful.” [his] [her] *40 The court refused to an instruction give defendant based requested by upon (5th CALJIC vol.) (hereafter No. 3.31.5 ed. 1988 bound 3.31.5) CALJIC No. 1, 2, which would have “In the read: crimes in Counts 3 and 4 of the charged indictment, there must exist a certain mental state in the mind of the Unless such mental state perpetrator. exists the crime to which it relates is [f| not committed. In the crime of Government Code violating sections 1090 1097, mental state is necessary possessing a financial knowingly interest.”
Defendant claims that a element necessary of the crime of violating sections 1090 and is that the accused 1097 must know he had a financial interest in the contracts. He further contends that the instruction on general criminal intent is contradictory irreconcilable with the instruction he must have that, acted defined, We “knowingly.” agree properly official must know he has a financial interest in the contract. We disagree, however, with the claim that the general intent instruction is inconsistent with the requirement or that the knowledge of this giving instruction requires reversal.
Before state, mental turning we requisite that the emphasize pro- hibited act is the of a making contract in which the official has a financial interest. As the it, trial court defined an official correctly has a financial when, interest in a contract other he among has “a things, contingent possibility or monetary (see benefits” proprietary People Darby, supra, 433, 114 4), instruction, fn. or in the words of the special when “it is foreseeable reasonably that the contract have a financial [ejffect ... on source of income of the official.” Put in but ordinary, terms, nonetheless precise, an official has a financial interest in if a contract he might from it. profit
B. The Required Mental State
Section 1097
provides
relevant
officer or
part
“[e]very
person
prohibited
laws of this
state from
or
interested in
making
being
contracts,
. .
,”
. who willfully violates
of such laws . . .
is
any provisions
(Italics
of a
guilty
added.)
felony.
The basic
tois
discern the
problem
meaning
in the
“willfully”
violates
phrase “willfully
[section 1090]”
the Penal
In the definitional provision
in section 1097.
contained
that,
from
7,
unless otherwise
Code,
apparent
subdivision provides
section
with which an
context,
to the intent
when
‘willfully,’
applied
word
“[t]he
omitted,
to commit
willingness
a purpose
implies simply
is done or
act
violate
intent to
act,
to. It does not require any
omission referred
or make the
another,
“has
law,
This definition
or to
any advantage."
acquire
or to injure
in the Penal Code
when used
the word ‘willfully’
only
been applied
as well.”
of other codes
[citations],
also when used
penal provisions
but
392].)
Cal.Rptr.
39 Cal.App.3d
[114
v. Mancha
(People
in criminal statutes
Thus,
implies
as used
the word ‘willfully’
“[t]he
Code, 7,
1),
subd.
(Pen.
to commit the act
or willingness
purpose
intends to do what
,
what he is doing[,]
knows
it
that the person
. . .
implies
(1948) 31 Cal.2d
(In re Trombley
is a free agent.”
he is
doing
(1989) 208 Cal.App.3d
re Stonewall F.
734].) We noted
P.2d
578],
entirely
section 7 definition
Cal.Rptr.
“[t]he
*41
[256
intent is
required
to which ‘wilful’ is appended.
the act
upon
dependent
Its significance
is applied.
which the term wilful
to do
that to
just
an intent
offense in
of the specific
the grammar
wholly dependent upon
therefore is
in this case
The term “willfully”
the term is employed.”
which
of the statute.
to a violation
act but rather
not to a
isolated
single,
appended
are “financially
at issue when they
the statutes
officials violate
Public
or by any
in their official capacity,
contract made
them
interested in any
1090.)
“will
(§
members."
Consequently,
of which
are
they
or board
body
context,
must
that the official
purposefully
in this
means
fully,”
applied
interested.
in which he is financially
make a contract
must
the violation
also
that
whether this offense
requires
We next consider
court instructed
jury
the trial
committed knowingly. Although
have been
must have “know
the accused
General that
Attorney
of the
at the request
he
contract in which
to be made a
made or
. . . and willfully
cause[d]
ingly,
interest,”
knowledge
now contends
General
Attorney
a financial
had
true that sections 1090
crimes. It is
of the charged
is not an element
“does not
a
instruction
jury
and that
“knowingly”
not use the word
1097 do
870,
(1992) 2 Cal.4th
v. Raley
of a crime.” (People
the elements
establish
Nevertheless,
does
712].)
section 1097
830 P.2d
Cal.Rptr.2d
law and
the conflict-of-interest
“willfully
that the official
violate[]"
require
noted,
that “the
a
imports
requirement
as we have
“willfully,”
the term
31 Cal.2d at
(In
p.
Trombley, supra,
he is
re
doing.”
knows what
person
cases, knowledge
in
807.)
appropriate
with that requirement,
Consistent
Thus,
for example,
of willfulness.21
be a concomitant
been held to
has
1271],
886 P.2d
Cal.Rptr.2d
Simon
For similar we conclude that knowledge implied is an element of a “willful” of violation the conflict-of- interest statutes.22Under the statutory review, scheme under an officer not be shall deemed to be interested in a contract if the officer has a remote interest in the contract “and if the only Thus, 24.) code, atory §2.02, p. note to requirement under this that an offense be “[a] wilfully person committed is satisfied if a knowingly acts with to the respect material offense, (Model purpose impose elements of the unless a requirements appears.” further Code, 2.02, token, (8), 22.) p. Pen. By subd. when an of the same element offense § conduct, person “knowingly” involves the nature his of a acts if that his he “is aware conduct (Model Code, 2.02, is (2)(b)(i), of that .” nature . . . Pen. subd. § 22Indeed, if were requirement knowledge making there no such of and the mere of the knowledge any possessing contracts were sufficient without of a financial interest in those contracts, liability then the crime would be a strict offense without mens rea or criminal union, intent. But provides, every “Penal Code section 20 ‘In crime exist a . . . there must or intent, joint operation negligence.’ of or act criminal The word ‘intent’ in section 20 ‘wrongful means requirement intent.’ ‘So is this a union of [Citation.] basic act and [of wrongful it every expressly is an invariable of element crime unless excluded or intent] ” (1975) 143, necessary (People Mayberry implication.’ Cal.Rptr. 15 154 v. Cal.3d [125 745, excluded, 1337].) 542 expressly P.2d Because impliedly this element is neither offenses, public because the crimes are welfare we conclude that intent is an criminal 336 of which the officer interest is board body
fact of that disclosed approved in its official records” the board is a member and noted faith the vote of the officer a remote contract in without good counting 1091, has (a).) This official (§ provision presupposes subd. interest. in the contract so that he disclose it to of interest knowledge one fail to disclose some- willfully board. the nature of cannot things, By Moreover, if were not one is a knowledge require- of which thing ignorant. scheme, a the official would be liable for possessing ment under this then in the even he did not realize he had such an remote interest contract though Simon, would strict As was the case in such a construction impose interest. an on less official who culpable merely possesses criminal liability In order to make sense of this remote interest in contract. unknown its must and harmonize of parts, requirement knowledge scheme statutory statute, (See, as it has in other criminal offenses. e.g., be read into this 485, 590, 652 (1982) Cal.3d P.2d v. People Snyder Cal.Rptr. 42] [186 12021]; of v. People of is an element section weapon implied [knowledge (1986) [knowledge 596-600 Lopez Cal.App.3d Cal.Rptr. 207] [233 148]; Code section officer is an element Penal implied status of peace Calban People Cal.Rptr. 441] is Code affidavit an element Elections falsity of implied [knowledge 29218].) section Cal. (See know? 1 Witkin & Criminal
But what must official Epstein, Crime, 1988) 124-125.) There three (2d are pp. Law ed. Elements a prohibited of making candidates for knowledge component possible is official know that section 1090 prohibits contract. The first that the must he is Under this making. interested the contract financially becoming view, section knows that he is there is no crime unless official violating view, this the official must know that Stated another under way, 1090. which interested constitutes financially act contract in he making advocates. We the candidate which defendant reject *43 crime. This seems this view. when “willfully,” is well settled that the terms “willful”
“[I]t statute, or omission occur that the act illegal in a require only applied penal of the act’s prohibited without to motive or ignorance “intentionally,” regard 375, 388, (Hale (1978) v. Cal.Rptr. character.” 22 Cal.3d 396 Morgan [149 must know of 512].) To that the actor 584 P.2d act means “knowingly” only instructed, an as the court is charged “knowingly,” and that trial element of the crimes implicit charged of the crimes. element knowledge,” meaning here an intent Attorney “guilty is correct that But General short, law, it is sufficient required not under sections and 1097. In violate the is 1090 might profit from knowledge that he them. official defendant made contracts
337 Thus, the existence of the facts which constitute the offense. “[k]nowledge does not refer to the defendant's awareness that he is what or she does or criminal in nature. refers to awareness of the culpable Knowledge partic ular facts in criminal statutes.” v. proscribed (People Lopez, supra, statute, 598.) In the words of the word Cal.App.3d ‘knowingly’ “[t]he that the facts only exist which the act or imports knowledge bring omission within the of this code. It does not provisions of the require any knowledge Code, (Pen. unlawfulness of such act or omission." subd. As the instructed, court the defendant need correctly not have of the “[k]nowledge (CALJIC 1.21.) unlawfulness” of his conduct." No. This instruction reflects the settled law that of the unlawfulness knowledge of an act or omission is unless the has required Legislature decreed specifically otherwise.
We therefore defendant’s reject claim that he must have known his conduct amounted to a conflict of prohibited interest. This is tantamount arguing defendant must have known his conduct was criminal. “ ‘ “It is an of both civil emphatic postulate law that penal ignorance of a law is no excuse for a violation thereof. Of course it is based fiction, law, on a because no man can know all the but it is a maxim which the law does not one to permit any . . . The rule gainsay. rests on public the welfare necessity; and the society of the state safety its depend upon enforcement. If a person accused of a crime could shield himself behind the defense that he violated, was of the ignorant law which he from immunity would in punishment most cases result.”’” v. Mott (People 589].) Cal.App.3d Cal.Rptr. [189 candidate,
The second at the other end of the spectrum knowledge, that the official need know the only of the contract provisions that he is If those contract making. confer provisions financial interest prohibited official, then upon the official view, has violated the statute. Under this the official would act with even knowledge if he did not realize he had a contract, i.e., financial interest in the he did not know that there was a reasonable likelihood that the contract result in a might financial personal Thus, benefit to case, him. in this example, defendant would violate the statute if even facts) (contrary he undisputed did not know his wife was and rent collecting salary QEP. from We this reject view as well. It would create a new of a strict species offense. In some liability public offenses, welfare enacted for the protection health and public safety, the courts have held that even where the statute a “willful” viola requires tion, the crime is punishable (See, without of criminal proof intent. e.g., People Baumgart (1990) 534]; Cal.Rptr. *44 People (1982) v. Gonda 138 779 Cal.Rptr. [188 295] cases].) [collecting “Although criminal sanctions are relied the upon, pri mary the purpose statutes is regulation rather than or correc punishment tion. sense, The offenses are not crimes in the orthodox intent wrongful (1956) Vogel of enforcement.” v. (People not in the interest
is required 798, 801, 850].) But the conflict-of-interest fn. P.2d Cal.2d [299 mere and hence are not strict regulation issue here are not for statutes at Their is and heavy corrective liability purpose prophylactic offenses. their Violations of these crimes are attached to violation. consequences penal in state the the imprisonment prison disqualify are punishable by office in this state. As the high forever from holding any public offender offenses, severe penalties in the context of different “[t]he court observed serious loss reputation those offenses imposed [citations] that in Legislature make it unlikely conviction extremely following intent.” wrongful (People exclude as those offenses the element of tended to here. at same rationale applies v. Cal.3d Mayberry, supra, candidate, is that the official must The third and the one we adopt, that the contract result in a may that there is a reasonable likelihood know essence, benefit to him. In this is version given financial personal the official know that his the trial court. This does not that jury by require a contract is that one benefit from may act criminal. Knowing personally a the law official from public does not that require knowledge prohibits view, a sensible an interest. In our this construction having imposes such it statute to circum felony restricts the reach this requirement; scienter se, a favored wrongful call intent or malum might stances one plausibly Simon, 518-519.) In (See v. 9 Cal.4th at our People supra, pp. society, result. without the intervention a sensibility recognize, should ordinary people official is trustee and that it is wrong criminal that proscription, public such feath self-dealing, including contingent a trustee engage of one’s own nest. ering which is inconsistent with the
There is this construction nothing (CALJIC the trial court. No. instruction on criminal intent general given 3.30.) we neither the willfulness explained length, requirement As have to violate the law or that the nor that of intent knowledge requires any know is This instruction informs jury defendant his conduct unlawful. to be a does which the law declares person intentionally “[w]hen crime, intent, even he though he is criminal acting general the law declares to be a know that his act or conduct unlawful.” What that the context is of a contract with knowledge crime this the making it. was so instructed expressly official in from The question may profit jury was on the correctly this mental Since the instructed jury on state. required offense, claim that the intent instruction general mental elements of from proper No. somehow jury applying in CALJIC 3.30 deflected (See Fabris of the crime hollow. rings People elements 667].) 698-699 Cal.App.4th Cal.Rptr.2d
339 that he did not that perceive Defendant claimed the contracts would have he because effect on his income believed that the funds his wife received and were not QEP. came from the dependent upon donors contracts with on the instruction criminal intent Nothing general defendant prevented Indeed, this to the jury. from defense counsel made that arguing theory instructions given were sufficient to allow the precise argument. jury on this and the defense it. pass jurors simply rejected hand,
On the trial other court should not have defend rejected ant’s instruction based CALJIC No. 3.31.5. This instruction upon would have informed the that jury “the mental state is necessary knowingly pos a financial interest.” the error not sessing But could have affected the jury’s verdict. As this instruction itself have rejected would informed the jury, mental state is included in the definition required of the crime set forth “[t]he elsewhere these instructions.” Those definitional instructions expressly advised the that defendant must not jury make a contract in willfully only interest, he had which a financial but that he also had to do so “knowingly.” law, instruction Although stated the rejected correctly viewing instructions as a whole we that find the court fully fairly instructed offenses, on all of the jury elements of the charged including requirement contracts, that defendant have he must known had a in the financial interest and did give a instruction contradictory on mental elements. required (1991) the error was Consequently, harmless. v. Wharton (People 53 Cal.3d 522, 631, 571-572 290].) Cal.Rptr. 809 P.2d [280 next
Defendant contends that under instructions given by court, trial sections 1090 and are vague and indefi unconstitutionally nite. Once we again Due disagree. process that a statute be suffi requires definite to a standard ciently of conduct for those whose provide activities are proscribed and standard which the law be enforced guilt 257, ascertained. v. (1983) Court (Burg Municipal Cal.3d 269 [198 145, accord, 732]; 673 P.2d Cal.Rptr. (1992) v. People Kelly Cal.4th 385].) Cal.Rptr.2d P.2d This be [3 violation requires described with certainty reasonable so that can ordinary understand people what is proscribed and so innocent are not fair without trapped (35 warning. 268-269.) Cal.3d at pp. Stated another criminal way, a statute “must definite enough to provide standard conduct those whose activities are proscribed” and it must definite for the “provide guidelines in order police prevent arbitrary (People enforcement.” discriminatory 189, 199 1229].) 9 Cal.4th 886 P.2d Cal.Rptr.2d Heitzman whether the re determining challenged statute meets the constitutional “ notice, statute, of fair quirement ‘we look first to the then language legislative its history, and decisions finally construing California *46 340 ” (Id. 200, Municipal Court Pryor v. at p. quoting
the statutory language.’ 330, 238, 636].) In People P.2d v. 246 599 Cal.Rptr. 25 Cal.3d 34, Watson, in People Darby, and and 15 at 33 supra, pages Cal.App.3d 428, the courts held that sections supra, 114 at 427 and pages here, 1097, meet test and not the trial court this are applied by 1090 and as Moreover, in the by statutory language void for vagueness. construing its additional fair notice of mean these decisions question provided judicial contention.23 We therefore defendant’s due ing. reject process is contention that the penultimate jury-instruction Defendant’s of 2.02 exacerbated the other asserted errors failure to CALJIC No. give respect CALJIC No. 2.02 advises the to jury which he complains. or mental evidence to a intent specific of circumstantial sufficiency prove instructed jury With to circumstantial evidence the court state. respect vol.) (hereafter (5th ed. bound accordance with CALJIC Nos. 2.00 2.00) but instruction based requested upon CALJIC No. and 2.01 refused CALJIC No. 2.02. they may if be must be considered void 23Defendant asserts that sections 1090 and 1097 indirect, finances of an by possibility “the mere of an attenuated effect on the violated public spouse on the income.” We enterprise employing a official’s and therefore official’s fact, nothing or already rejected But in there was indirect attenuated have that contention. QEP. public moneys be all financial effect on Defendant directed that about contracts’ QEP, QEP expense own pay employees saving paying thus of its used to of QEP’s having and on finances. This case employees, and thus a direct immediate effect sort, because, only of financial of defendant as most cases this involves an indirect interest Honigs’ salary receipts rental were Nancy’s it be shown that and benefits and the cannot issue, although escalating directly dependent they were and upon the contracts continuous we operative. In this connection note that during periods in which the contracts were and regards which defendant as more lenient than sections 1090 sections benefit; rather, it is require showing potential personal not would even affected, “[a]ny including be source of sufficient that of the identified entities or interests one income,” (c).) QEP (§ of income aggregating $250 or subd. Since was a source more. defendant, QEP to violate sections benefiting to the contracts were in themselves sufficient given by in this showing. The instructions the trial court 87100 and without further more, go although they did not so far prosecution required under sections 1090 and 1097 flowing proof to from the contracts. require to of direct and certain benefits defendant No. “Evidence consists 24Thecourt in accordance with CALJIC 2.00 as follows: instructed witnesses, testimony writings, anything presented or to senses objects, material prove is either direct or the existence or nonexistence of a fact. Evidence [SO offered fact, directly proves a without the circumstantial. Direct evidence is evidence that [SO itself, true, by that necessity of an It is evidence which if found be establishes inference. true, that, proves a fact from which is evidence if found to be fact. Circumstantial evidence [SO An is a may an existence of another fact be drawn. inference deduction inference [SO reasonably group or of facts logically be drawn from another fact fact necessary proved by be direct evidence. established the evidence. It is facts [SO also, by or of direct They may proved, circumstantial evidence a combination evidence are acceptable evidence and circumstantial evidence. Both direct evidence circumstantial proof. any greater weight than the other.” as means of Neither is entitled No. was be used of CALJIC designed place CALJIC 2.02 No. state 2.01 the defendant’s intent or mental element specific only when on evidence. substantially entirely the offense that rests circumstantial *47 2.02.) not (See Note to CALJIC No. It should be where the given Use or, circumstantial, is direct if is not consistent with a evidence either equally 147, Heishman (1988) v. Cal.3d (People of innocence. 45 167 conclusion 673, 629]; 162, Wiley (1976) 18 753 P.2d v. Cal.3d People Cal.Rptr. [246 135, Furthermore, 881].) it 174-176 554 P.2d should not be Cal.Rptr. [133 indirect, because the evidence is but is given simply incriminating appropri of ate when a guilt depends upon only proof pattern incriminating Heishman, 167; (People supra, People 45 circumstances. v. Cal.3d at v. 621, 273, Gould (1960) 865].) 54 Cal.2d 629 354 Cal.Rptr. P.2d [7 defendant claimed he did Although not know conduct was criminal, his of all of the facts to a rise knowledge giving prohibited in financial interest the contracts was and established overwhelmingly Thus, the most in part was conceded his own did those facts not testimony. rest upon circumstantial evidence. The court did err substantially not instructing accordance CALJIC No. 2.01 rather jury than No. 2.02.
Defendant’s last contention of to instructional error relates CALJIC No. 2.90, the reasonable doubt instruction (See the trial court. Pen. given by “However, The jury court instructed accordance with CALJIC No. 2.01 as follows: finding guilt any may toas crime not be on based circumstantial evidence unless the (one) proved only are theory circumstances not guilty consistent with the that the defendant is crime, but, (two) Further, of the any [<JQ cannot reconciled with other rational conclusion. complete each fact which is necessary essential to a set of circumstances to establish the guilt words, defendant’s proved beyond must be a reasonable doubt. In other before an guilt may inference essential to proved beyond establish be found have been a reasonable doubt, each fact or upon circumstance which necessarily proved such inference rests must be Also, beyond any a reasonable doubt. if particular [H circumstantial evidence as to count susceptible is interpretations, of two points guilt reasonable one which to the defendant’s innocence, you and other to his adopt must that interpretation points which innocence, reject inteipretation guilt.” defendant’s points which to his rejected The court an upon instruction based 2.02 CALJIC No. which would have in- structed: “The mental state with which an act is done be shown the circumstances surrounding the you may commission of the act. But guilty not find the defendant 2, 3, charged 1, proved (1) offense in Counts and 4 only unless the are circumstances theory (2) with the required consistent that the had defendant mental state but cannot be Also, [°¡Q reconciled with other rational conclusion. if the evidence as such mental state susceptible is interpretations, points of two reasonable one which to the existence of the state, mental state the other to you adopt interpreta- the absence the mental must If, hand, points which inteipretation tion to the absence of the mental state. on the other one appears of the evidence as such you mental state to be reasonable and other unreasonable, interpretation you to be accept interpretation reject must the reasonable unreasonable." 342 1096,
Code, the constitutional 1096a.) inaccurately He claims it defines §§ argument premised reasonable doubt. of proof beyond requirement People Court in Supreme certiorari the United States on the grant 342, 862], P.2d (1992) 4 841 certiorari Cal.Rptr.2d Cal.4th [14 Sandoval 1993, 18, (1994) v. Nebraska affirmed sub nom. Victor granted September 22, March 114 S.Ct. On U.S. L.Ed.2d 1239]. [127 2.90, that CALJIC No. taken Court held Sandoval United States Supreme whole, of reasonable doubt conse- as a correctly conveyed concept no that the understood the jurors there was reasonable likelihood quently on insufficient to meet the standards instruction to allow conviction proof S.Ct. U.S. 358 L.Ed.2d Winship set forth re 1068]. *48 court, Nebraska, 1.) “. in (Victor 511 In the words of the . . v. U.S. supra, use of the a whole we cannot say context of the instructions as in rendered the instructions Sandoval’s case given phrase certainty’] [‘moral (Id. 597].) we Accordingly, L.Ed.2d at p. unconstitutional.” at p._[127 argument. defendant’s final instructional reject Evidentiary Rulings II. to motion in limine
Prior to trial the court granted prosecution that defendant would not be evidence. court ruled exclude certain QEP substantial amounts of to evidence that expended introduce permitted QEP evidence of the in the districts in which it operated, utility money districts, QEP’s business or evidence private within school program the defense ruling The court modified its permit donors. subsequently donors, it obtained its from funding private introduce evidence that primary its without assistance from operations sufficient resources to conduct had DOE, and in fact funds in the spent did not districts for its charge program, committed it that the court districts which Defendant contends operated. motion in limine. The conten error in granting reversible prosecution’s tion is unpersuasive. Code, (Evid. evidence.” evidence is admissible relevant “No except “ evidence, evidence relevant 350.) including ‘Relevant evidence’ means
§ declarant, having tendency to the of witness or hearsay any credibility or fact is any consequence reason prove disprove disputed Code, 210.) that a trial (Evid. It has been said determination of the action.” the relevance prof court is vested with wide discretion determining 1, 1, (1980) Cal.Rptr. 27 Cal.3d 19 (People fered evidence. v. Green [164 However, 468].) determining it has also been said that P.2d 609 case, a trial a defendant in a criminal of evidence admissibility proffered doubt. reasonable any (People should the defendant the benefit of court give 212, 1106].) 576, 703 P.2d (1985) 584 Cal.Rptr. v. 39 Cal.3d Wright [217 court But this does not mean that a trial to allow the defendant to required evidence regard define the issues or introduce without to its relevance to the issues defined law. A court has no discretion to admit irrelevant trial 306, (People (1988) evidence. v. 45 Cal.3d Poggi Cal.Rptr. [246 1082]; (1978) 753 P.2d v. People Kitt Cal.Rptr. Cal.App.3d [148 447]; 61].) v. Slone People 76 Cal.App.3d Cal.Rptr. we have sections As 1090 and 1097 are previously explained, what concerned with have rather than what might happened actually merely their is to remove or limit the happened objective possibility which on bear an official’s decision. personal gain might (Stigall v. City of Taft, 569-570.) 58 Cal.2d at are supra, They aimed at pp. eliminating temptation, avoiding appearance impropriety, assuring gov ernment of the officer’s (Thomson undivided and uncompromised allegiance. Call, v. 38 Cal.3d at supra, establish standard of Accordingly, they fraud, official conduct which does not such depend dishon upon things state, esty, unfairness loss to the and which be violated may regardless how fair or beneficial the contract be. government (People Darby, 426-427, supra, 114 437.) Such matters pp. are not relevant in *49 under prosecution sections 1090 and (People 1097. v. Vallerga, supra, 67 865; Watson, 39; at v. Cal.App.3d p. at People supra, Cal.App.3d p. 426, 437; v. People Darby, supra, 114 Cal.App.2d at see pp. also Thomson v. Call, 649.) 38 Cal.3d In supra, at view of p. these authorities the trial court did not err in to defendant refusing permit to evidence of the value of present QEP in the districts program which it or that he had a operated, good motive in making contracts issue.
Defendant asserts he that to introduce from planned evidence some QEP’s of private contributors to establish that its was not funding dependent upon and having developed that the contributors would program private QEP have funded while it its to developed defendant program. According this would have QEP’s established that there no was between linkage (and success thus and salary benefits Nancy’s and rent Honigs’ receipts), and the QEP of the development workers program by by funded DOE. First,
There are two flaws in this defendant made argument. the contracts QEP benefited at a time when had a financially he substantial financial interest in QEP and benefits and rental through their Nancy’s salary joint QEP Whether have receipts. would received donations sufficient private and its develop implement to make the same and benefit programs salary and payments rental Nancy without the benefit of payments Honigs contracts, the DOE are matters that will of remain necessity speculative And, since the actual events did not take that course. whether in making QEP interest by influenced financial actually defendant was contracts can is to direct subject proof its nature is a matter that this is In these case respects typical inference. only through determined most, That is our precisely why situations. if not conflict-of-interest many, at possibility are aimed personal conflict-of-interest statutes City its v. actuality. (Stigall are not concerned with solely influence and 569-570; v. People Vallerga, supra, Cal.2d at Taft, supra, pp. Watson, 865; at v. People supra, Cal.App.3d p. at short, it not necessary sections 1090 and 1097 prosecution in a under financial benefits to an official and direct between to establish a dependency 58 Cal.2d City Taft, supra, pp. a contract made him. (Stigall knew he had an 569-570.) It the statute that defendant is sufficient under and benefits and QEP Nancy’s salary indirect interest in through financial contract in his and nevertheless made a rental Honigs’ joint receipts QEP QEP. Whether could have or would official that benefited capacity benefits, the DOE contracts is and rent without have the same salary, paid both and irrelevant. speculative
Second, was not to the trial court. this of admissibility presented theory to exclude evidence the amount motion sought pretrial prosecution’s donors, QEP the amount of funds raised from private corporate and the it its implementing programs, quality money expended it court to permit it The defense reply urged services rendered. mechanisms, raised QEP’s it financing namely, introduce evidence of those funds its implementing donations through private expended funds were As we it to show that its valuable. programs, permit programs noted, but subse- have court motion granted initially prosecution’s its financial its order the defense to introduce modified to permit quently *50 but the adverse was original ruling changed evidence. Defendant concedes of him to adduce evidence the submits the modification allowed only QEP in with the contracts in amounts of funds that connection expended submission, vitiates defendant’s issue. to this the modification Contrary him from presenting claim order the motion in limine barred that the granting of The modification his of lack of financial interest. knowledge any defense to use of a defense prosecution objected diagram by occurred when the the in of in trial ruled favor defendant counsel his statement. The court opening its follows: explained ruling which the prosecution’s “The defendant has presented diagram disputes to his from the of Education ultimately flowing Department theory money in QEP the districts maintains financed the in school program wife. He that He also main- for of the four the employment employees. question except QEP Department of that the paid by tains that excess spent money for the of the four employees. Education employment words, “In show that was no other the defendant to there attempting QEP; flow of from of Education to the defendant’s money Department the wife was for her and rental and would not independently paid salary [szc] the had have received these even if defendant payments approved contracts; contracts; no he therefore had financial interest in the the Depart- administer QEP ment of for Education to only paid employees programs to districts that decided that wanted utilize them. they time, “At rules its this court defendant utilize chart may the case this presenting theory during opening argument.
“The General asserts that flowed from the Attorney money Department Education the school district in and their to the through question employees defendant’s wife. The defendant is entitled to an to the present argument to the contrary jury. time,
“At this the court notes that the General has not Attorney presented interest, which legal authority states the defendant a financial possessed even if QEP possessed the to ability wife. Absent such independently pay the Court authority, permit must defendant to contest the prosecution’s cash straightforward flow of the case.” theory ruling
This was a green light the defendant to his state-of-mind pursue defense. He was that he think permitted did not there was testify that a possibility QEP financial benefit to would when himself accrue he Indeed, authorized the QEP’s contracts. both sides introduced evidence financial arrangements But defense did not seek to call standing. its private donors did not otherwise whether testify such evidence inquire would be within the court’s not be ruling.25 judgment A reversed due to substance, exclusion of evidence unless the and relevance of the purpose, Code, 354, evidence (Evid. were made known to the (a).) trial court. subd. permitted present 25The was expert testimony defense public certified accountant during period question the effect that had sufficient financial reserves to have QEP paid over, Honigs’ pecuniary benefits several times and that the absence of the DOE contracts greater it would have had even capacity payments, although to make those reasoning point witness’s on prosecutor the latter was objected tenuous best. The *51 ground point latter on the that the accountant could not take account qualitative into the effect of the development DOE-funded workers’ contributions to of the program the but the QEP permit court prosecutor go questions concerning would not the to into the of value QEP’s services and objection. overruled the After of the sought, the close evidence defense success fully in part, prosecution’s argument limit the and at that said that have time it could called corporate However, testify they continuously donors to prepared that were fund the QEP. attempted defense had not to introduce such of the the evidence and view fact that court permitted it to introduce apparent its financial evidence it is not that would the court have long excluded opinions this evidence so as it did of not involve to the value QEP’s services. relevance, evidence, was and its asserted not presented This particular serve as a for reversal on ground appeal. court and thus cannot trial asserts that he was from evidence precluded presenting Defendant would have shown that school and that principals from superintendents before the highly long was and successful QEP’s “fully developed program under them.” Defendant did not and the consultants’ work state contracts the that he and the record refutes offer such evidence trial possibility the at issue in done so. Defendant made contracts which are early could have term of the contracts ran and 1988. The cumulative early early 1, 1986, QEP June the testimony from 1989. through July Perondi, Law, testified, Dunbar, Page, Rodriguez, who employees including Tramutola, submitted, clearly establish and and evidence documentary and QEP development and its were undergoing growth during that program and his shows testimony that Defendant did otherwise suggest period. QEP development during he that was and undergoing growth that was aware QEP to file The official was reports required of the state contracts. period year in the General confirm this evidence. For example, with the Attorney QEP had relatively contract challenged first immediately preceding $123,528, $221,330 the last while in modest revenue of and expenditures had more than QEP covered the contracts by grown of the period year $1,209,454. $1,011,074 fourfold, It and revenues expenses cited in the In the record reference by doubled next roughly again year. to evidence that the on defendant’s trial counsel referred defendant appeal, that could QEP was not and said he reference manual finalized QEP that was and successful developed evidence program produce QEP’s was But a that program before manual. completion showing is not and before the manual completion successful developed successful QEP’s fully highly evidence that was program developed was made. its 1986 when the first of the contracts challenged before long made it clear in limine motion the defense opposition prosecution’s QEP it that the was valuable that wished to evidence present program It contracts. that the state received benefits from challenged pointed received school administrators whose districts from testimony proposed neither contracts. The defense covered these during services period QEP that the was fully made an offer of evidence program proof specific contracts, nor that suggested before the challenged successful developed QEP devel evidence that grew it would seek to rebut the program The trial court correctly covered these contracts. oped during period QEP from the the state and school districts benefited ruled that whether viable and no other and the contracts was irrelevant challenged programs before the court. admission of this evidence was theory placed erred in evidence excluding Defendant contends that the court contracts were the DOE offered an opinion the chief counsel of had *52 The court the after conducting not excluded evidence hearing improper. (Evid. Code, outside of the consider its jury’s presence admissibility. are proffered The facts relevant to this evidence as follows: Smith, who to set deputy, agent Defendant’s James was the directed up contracts, contracts each time the vigorously opposed making Smith, arose. who was not aware that received question Honigs pecuni- QEP, benefits from that he ary testified was concerned that contracts seemed or at that be least would improper, they perceived improper, he claimed than also that concerns were rather although political legal. At some time in Smith talked to counsel Symkowick, chief Joseph DOE, QEP/DOE and asked for an oral on the of the opinion propriety know, situation as he knew it. He did not thus did and not tell Symkowick, that in QEP. defendant had a financial interest Smith testified Nancy that him the Symkowick told did not to be and that he arrangement appear illegal that passed information defendant. along
Symkowick remembered the conversation and also init 1985. He placed said that Smith concern about the expressed propriety arrangement and asked for his told Smith him the DOE opinion. that was federal giving categorical aid to school moneys districts in East area and Bay was Nancy working those districts. Smith did not further provide any information about He QEP role. did not tell Nancy’s Symkowick about Symkowick QEP. did not know about not tell Smith did that the Symkowick funds would be used to for a work with pay personnel private company which was And he Nancy affiliated. did not tell Symkowick that was Nancy and rental receiving salary from a for whom the payments private company would work. employees asked Smith whether was Symkowick receiv- Nancy ing from the DOE was that she He money told was not. asked whether she was from receiving the districts that were any money getting federal funds and was told that she He was not. asked whether she was of, getting either any money, directly or that Smith knew and was indirectly told that she was not. Symkowick testified that he told that he Smith could sensitive, understand that the issue “but if no might there is or money dollars or else that anything either went to her to—goes either or directly it, he indirectly,” then could not see wrong anything legally. First, trial court did err in this clearly evidence. excluding
Symkowick knew virtually nothing the true circumstances surrounding the contracts he offered based was not the facts as opinion upon they Second, is, existed. Symkowick’s was he opinion saw no contingent, if problem Nancy was not receiving benefits directly indirectly. Finally, faith, defense action taken in in reliance advice good “[t]he of a upon *53 348 lawful, theory it was has been long rejected. that attorney
reputable law, would also would the advice of counsel above this place that (1 the law.” counsel’s or indifference to ignorance on premium place 254, Defenses, 220, Law, Criminal citing & Cal. supra, p. Witkin Epstein, 127, 819]; 137 (1981) Cal.Rptr. v. 125 Vineberg Cal.App.3d [177 People 26, 389]; v. (1949) P.2d People v. Aresen 91 Cal.App.2d [204 People 436].) (1923) P. Since Symkowick McCalla Cal.App. [220 than relevant oral which was less all of the offered an based upon opinion information, facts, defendant was not factual did purport provide facts, err in the trial court did not full of all of relevant in possession (See v. People excluding Symkowick’s evidence opinion. Flumerfelt McCalla, 190]; 497-498 P.2d People 35 Cal.App.2d 793.)26 at supra, Cal.App. p. erred in charac excluding contends that the trial court
Defendant Ravitch, assistant evidence. trial defendant called Dr. Diane a former ter At Education, in the United who of education States secretary Department character, both in of her a broad of defendant’s terms offered assessment whether and of When the witness was asked defendant’s opinion reputation. alleged defendant’s was such that he would the conduct engage character indictment, had on the that the witness objected the prosecutor ground The court said that she no the facts the case. knowledge surrounding had excluded the evidence under Evidence Code section on the grounds effect, result its value was it would outweighed probative prejudicial time, mislead in an undue and it would tend confuse and consumption Anderson, from Pied Dr. Gail a school superintendent jury. Similarly, mont, broad character but was to offer a assessment defendant’s permitted was not state whether character was such that he would allowed to his in the crimes of which he was accused. engage statute, criminal
Under introduce a defendant in a action may evidence of his or a trait of character in the form of an opinion character conduct, order to or evidence of but not in form of reputation, specific (Evid. trait conduct in with such character or of character. prove conformity here, fact, supported by no 26While mistake of law would be defense mistake if evidence, and McCalla illustrate The decisions the distinc substantial could be. Flumerfelt knowingly selling In cases without a charged tion. both the defendants were securities subject not a McCalla evidence permit. opined In that counsel of sale was had security for was because of law is permit properly which a was needed excluded mistake (63 properly Cal.App. a defense. at it was held that the defendant could Flumerfelt permit introduce counsel had had been obtained because evidence that advised that (35 knowledge pp. mistake of fact rebut element of the offense. would 497-498.) Symkowick opinion was provided Here no information to defendant and his factual properly excluded. *54 Code, However, 1102, (a).) subd. character evidence must relate to the § Jefferson, (2 character trait involved in the offense. Cal. charged particular 1982) 33.4, (Cont.Ed.Bar 1187.) Evidence Benchbook 2d ed. witness must be with that trait of the defendant’s sufficiently acquainted 863, (1969) character to offer an v. Harris 270 (People opinion. Cal.App.2d 130].) 872 The witness’s must be based testimony upon Cal.Rptr. [76 matter, the form of an of the and knowledge subject testimony personal the witness and must be based rationally opinion upon perception 702, Code, (Evid. to a clear of his or her helpful understanding testimony. §§ broad, A with to an ultimate fact general objection opinion respect able if the can be broken down and question greater simplified provide 820, (1981) assistance to the trier of fact. v. Brown 116 (People Cal.App.3d 221]; 413, 828 244 418 Cal.Rptr. People Arguello [172 245].) Cal.Rptr. Under the circumstances the trial court did not err in sustaining to the at issue. The witnesses total objections questions professed ignorance of the facts offenses and defendant made no effort surrounding charged to show they understood the nature of the or the traits of legal charges character that be relevant. Without a foundation might proper questions were overbroad and and more amounted to than vague, nothing asking whether witnesses believed defendant should be convicted. The ques tions could have been broken down into more and in fact specific inquiries the witnesses were permitted testify traits fully respect specific character. Had the been in the form asked it would have questions permitted cross-examination, been for the necessary on to delve at prosecutor, length into the witnesses’ understanding nature of the offenses and charged the character traits involved. Under these the court err circumstances did not concluding evidence had if proffered marginal, any, probative value, could be prejudicial would have a prosecution, tendency confuse the and jury, would have an undue of time. required consumption
III. The Nature the Contracts terms, their sections By are directed at the making of official “contracts.” Defendant contends that the transactions at issue were rather than contracts and of sections actually grants thus beyond scope 1097. We are not convinced that rather QEP transactions calling “grants” than “contracts” would have effect on the of sections 1090 applicability 1097. Defendant out that in the Civil Code in points enacting defined a contract and for its essential elements in Civil Legislature provided Legislature 1550. At the same time the defined Code sections 1549 and as a transfer Defendant asserts writing. in Civil Code section 1053 “grant” must be exclusive and that “contract” must mutually that these terms However, Civil with the contemporaneously adoption include “grant.” Code enacted Civil Code sections Legislature contract, is an executed “A transfer voluntary section 1040 to provide: except contracts in to all rules of law subject concerning general; *55 to Code section not to its Pursuant Civil necessary validity.” consideration is of “con- within the broader subject 1040 the included Legislature “grants” a tracts” them the same rules of law. where Accordingly, and subjected no a he a financial interest we see state official makes contract in which has and 1097 which he can under sections 1090 responsibility basis upon escape the was a actually “grant.” that transfer by claiming event, of that the distinction
In for the sake assuming argument relevance, has we do not find defendant’s between and contracts grants be we must In defendant’s contention argument considering persuasive. First, the court instructed the jury two well-established by principles. guided be it would find defendant offenses charged that in order to guilty he a find he in which had financial that it that made contract required interest, The found of “contract” was provided. jury and a brief definition in at issue defendant made contracts that into the transactions entering on findings had financial interest. these reviewing which he we will evidence rule. Accordingly, we must the substantial appeal apply all in the resolving most favorable to light judgment, review record inferences in drawing evidence and all reasonable support conflicts 557, (1980) 26 Cal.3d determination. v. Johnson (People jury’s Second, 738, as we have 1255].) 606 P.2d A.L.R.4th Cal.Rptr. noted, conduct and are concerned sections 1090 already making rules governing officials rather than technical governmental which the against standard considering legal contracts. Accordingly, a narrow provisions evidence must be measured we those give the legislative that limit their and defeat scope technical would interpretation 571; Millbrae 58 Cal.2d (Stigall Taft, supra, pp. purpose. City of Millbrae, at p. supra, Assn. Residential Survival v. City for 237.) and 1097 beyond While we will not sections 1090 expand scope in an unduly will we read those sections their reasonable neither meaning, sense. narrow technical the transac finding that support
We find evidence to ample First, documents contracts. the executed written tions in issue were fact contracts, contracts, is, form of be were set in the they up purport contracts, forms on state are and were written standard they state that are to the same contracts essentially subject contracts. Grants and making Code, (Civ. These rules provide rules of interpretation. their language; written instruments is to be governed interpretation to be understood in their ordinary of the instruments are popular words used, sense; and, are are they interpreted to the extent technical words to which relate. in the or business they as understood by profession persons 1644, 1645; Proc., 1861, 1865.) Code, Code Civ. (Civ. §§ §§ instruments, ordinary both in their popular used the written language sense, with construction of the in their technical are consistent sense and with construction of the transac- as contracts and inconsistent transactions tions as grants.
Second, bemay in some instances a written instrument although be, an to be other than what it such something purports construed and will not be in the absence of is not favored adopted interpretation (1944) 24 (Beeler v. American Trust Co. evidence to that effect. convincing *56 1, 583]; (1963) 223 Workmon Constr. Co. v. Weirick Cal.2d P.2d [147 487, 17].) of witnesses At trial a number Cal.Rptr. [36 such testified to usual an award of grant money, procedures accompany who as notification to school districts and service providers may potential the by grant pro to receive funds or services compete provide anticipated here; rather, of defendant simply None these was followed gram. procedures for the directed his staff to for the DOE to funds arrangements provide make QEP’s of their districts while were on they payment employees through QEP. leaves of absence in order to work for To construe these transactions as would be to to grants disregard procedures employed accomplish transactions as well as the form of the instruments utilized.
Third, rules of us to consider the circum- general interpretation require contracts, to which stances the matters surrounding making they relate, Code, 1647; (Civ. and the situation of the to the contracts. parties § Proc., 1860.) Code Civ. And rules to sections 1090 specific applicable that we view the transactions in a broad manner and avoid 1097 require v. City Taft, supra, narrow and technical definitions of “contract.” (Stigall of 569, 571.) We consideration to the 58 Cal.2d at not restrict our pp. all named in the written instruments but must consider as a whole of
parties Call, (Thomson involved v. supra, of the various dealings parties. 644-645.) In the transactions at issue here each of the compen- Cal.3d at pp. QEP this end took leaves of sated to work for and to agreed employees covered by from their school districts. During periods absence and control of worked under the exclusive direction contracts employees business, or direction QEP, QEP’s and without the supervision performing districts, worked, The DOE in which or the DOE. of their the districts they to act agreed funds to the districts and the districts agreed employees’ pay QEP funds to the for of those employees. as conduits the payment transactions were contractual simply multiparty agreements substance these Call, (See QEP the DOE. v. by for of Thomson employees the payment 644-645.) 38 Cal.3d at supra, pp. authority has to no which would pointed legal defendant
Finally, in this money him make a unilateral decision to bestow grant permit 3, XVI, of our state Constitution relevant fashion. Article section provides ever be or drawn from the State Treasury “No shall money appropriated part: association, asylum, for or benefit of any corporation, hospital, the purpose of and control management or other institution not under the exclusive any institution, or nor shall donation any grant property the State a State XVI, State, state ...” Article section our ever be made thereto no shall have Legislature “The power Constitution provides part: irrelevant or making any any ... to make authorize any gift, public gift individual, of value or other municipal corporation thing money not in . are broad limitations were whatever . . .” These provisions for in the funds public tended to restrict the state unduly expenditure liabilities, its make Thus the state may legal state legitimate purposes. pay consideration, determined for money duly spend contracts supported an serves The determination whether expenditure public public purposes. legislation. make enacted Legislature through duly purpose 455]; Nye P. v. (Patrick Wessling Cal. 356-357 Riley [287 408].) P. in the absence such (1909) 156 Cal. 474-475 But *57 determination, no to authority public officials have legislative spend public is aimed (Ibid.) funds. Thus it has been said: “Where appropriation other than the or of individuals group an individual chiefly benefiting relation should be some contractual in it seems that there public general, state, authority some liability specific justifying on the imposing legal California, Cal.Jur.3d, (58 State of or some enforceable claim.” expenditure, 244-245.) pp. § identified, found, statutory has any
We have not nor defendant could which these expenditures to program Legislature pursuant to authority limits may delegate as Within “grants.” Legislature qualify to for the public administrative officials set up programs expenditure however, within has Legislature, delegated questions policy funds. than to the Superintendent the DOE to the State Board of Education rather found, Code, We not (Ed. 33030 et have seq.) Public Instruction. § identified, regulatory pur program defendant state educational has find nothing We as might qualify “grants.” suant to which these expenditures would give which in of Public Instruction Superintendent the authority in “grants” him make expenditures to discretionary authority Code, (Ed. or statutory regulatory program. absence of a established duly 33111 et seq.) § in federal funds were used grant
There was evidence to indicate that fact However, QEP contracts. that factor does not alter our conclu- to fund the sion. It of our federal funds to Legislature general policy accept be to the of federal under the programs expended pursuant requirements to rules and of the State Board of Education and regula- auspices pursuant Code, (Ed. 12000 et The Superinten- tions established that board. by seq.) rules and regulations dent of Public Instruction has the authority prescribe contracts, made or with under which agreements arrangements funds, services, commodities of the federal government agencies contracts, agree- to be made available to schools and all public equipment ments and must be made to those arrangements according regulations Code, (Ed. 33113-33114.) in the no other manner. There is no evidence §§ QEP record to that the utilized in the contracts were suggest funds expended that the of the State Board of Education or pursuant regulations contracts were made established according regulations by superinten- dent. We find no of law which would vest the provision superintendent the unilateral to direct the of federal funds in the manner power expenditure in which he acted.
In the absence of factual evidence and which would legal authority QEP construction of the contracts as we will not so support “grants,” construe those transactions to enable defendant to avoid the simply legal dictated sections 1090 and 1097. In order to do so we consequences took, would be the form required ignore the contracts the procedures made, substance, which were and their they order to construe them to be for which we find no in the first Sections something legal authority place. 1097 are not to be a narrow and technical manner that applied would limit their and defeat their (Stigall City scope legislative purpose. 569, 571.) Taft, supra, 58 Cal.2d at we defendant’s Accordingly, reject pp. contention.
IV. Prosecution the General by Attorney The acted as the in this case. Prior to General Attorney prosecutor trial defendant moved to dismiss the indictment on the unsuccessfully that the General to the action. ground authority lacked Attorney prosecute He now contends that the reversed for that reason. We must be judgment disagree. con-
Penal Code section “Whenever the General provides: Attorney without the concurrence siders the interest he with or public requires, may, to convene for of district direct the the attorney, grand jury investigation the of he consideration of such matters a criminal nature as desires to submit to He of the of such matters the presentation grand to it. take full may charge indictments, all things and do other incident issue jury, subpoenas, prepare attorney may to the same extent as the district do.” Section 12550 of thereto has direct Attorney the Government Code “The General provides: supervi- the the district of the several counties of State and attorneys sion over business them written as to the condition of public reports require When he deems it advisable or the necessary entrusted to their charge. [<]D Governor, interest, he shall assist any or when directed to do so the public duties, he it where deems of his discharge may, district the attorney of violations take full charge any investigation prosecution necessary, has all In he the court has this jurisdiction. respect law of which superior to or cause of district the to issue attorney, including powers power or other issued subpoenas process.” section that section 12550 and Penal Code recognizes
Defendant to undertake prosecution would General give Attorney apparent authority action, unconstitutionally of this but he asserts that those are provisions V, Constitution, which in view of section of our state broad article General in relevant “Whenever in the opinion Attorney provides part: it shall enforced in any county, law of the State is not any being adequately violations of law any be the of the General duty Attorney prosecute such cases which the court shall have jurisdiction, superior Defendant attorney.” General shall have all the of district powers Attorney General’s Attorney that this constitutional restricts provision argues criminal that the where he determines actions cases authority prosecute him same broad law is enforced and does not being give adequately deems it or appropriate to act as when he advisable authority prosecutor do the statutory provisions. conflict the scope case it is to consider unnecessary any potential this the constitutional provision and constitutional since statutory provisions, The constitu- of defendant’s contention.
is sufficient resolution authority authority General the Attorney tional provision gives unquestionably be within that the action criminal actions. limitations are prosecute only of the General be court’s superior jurisdiction, Attorney in any enforced law of is not being adequately the state opinion of the state are to ensure that laws That was intended county. provision from enforcement than to criminal defendants enforced rather insulate *59 by the It showing necessity prosecution laws. does not suggest Instead, confers broad it General is in some manner Attorney jurisdictional. in and when to step General to determine upon Attorney discretion a criminal case. And that does not prosecute provision suggest General's discretion is reviewable Attorney by court at the superior behest of a defendant. object
But without that a criminal defendant assuming, deciding, may General, it that the superior cannot be doubted prosecution by Attorney This is to consider the limited. authority very court’s would objection courts from dictated doctrine that separation powers precludes (See interfering with the executive decisions of authorities. prosecutorial (Felmann) v. Superior Court People Cal.Rptr. 59 Cal.App.3d which, 548].) It is also clear from the least constitutional itself provision instance, in the first vests the General with broad discretion in Attorney when to if the deciding court review the prosecute. Accordingly, may all, General’s decision at it Attorney interfere with that certainly may manifest decision in the absence of a of a abuse of discretion. This showing first, means two the burden is on the defendant to things, establish an abuse decision, of discretion rather than on the General to Attorney justify second, the General’s decision must be unless no reasonable Attorney upheld could reach the same conclusion. person
In to dismiss the indictment reason of moving prosecution by General, the defendant did not Attorney to make attempt any showing General; rather, an abuse of the discretion vested in the Attorney motion consisted of a challenge General to his decision. That Attorney justify alone is sufficient reason to defendant’s reject objection. event, the record for the provides ample justification Attorney
General’s decision. in defendant’s Contrary assumptions implicit argu- ment, the constitutional does not provision require pattern inadequate enforcement before the General decide to nor does Attorney prosecute, it require any dereliction or recalcitrance of local finding upon part Rather, that, it is sufficient prosecutors. General’s Attorney opinion, law of the (Cal. State is not enforced in “any being adequately any county.” Const., V, 13.) art. As the General out Attorney pointed opposition dismiss, defendant’s motion to this case lacks a clear situs and instead several local It involves an elected implicates jurisdictions. state constitu- tional officer in of a with statewide charge department jurisdiction. Sacramento; DOE’s QEP’s offices are in primary corporate headquarters Francisco; were in residence in San the nominal Honig contracting District, were the Fremont Unified School the Pasadena Unified parties District; School District and the Sweetwater Union School and the High worked in subject various other of the state. These factors employees parts for, that, made it difficult a local would take action unlikely prosecutor *60 in over a prolonged law. Defendant these transactions engaged to enforce the it does not had yet any prosecutor of time and local appear period There is in the forward to and enforce the law. nothing stepped investigate that, of the the discovery Attorney record to after offenses suggest General, an to forward to local had indicated intention prosecutor step that, evidence of in wrongdoing, the law. The fact is clear enforce despite this intervention law was not enforced without adequately case state being factors the decision of Attor- General. These warranted Attorney was no abuse of discretion in General to undertake and there prosecution ney that decision. Restitution
V. trial sentencing hearing, initial At defendant’s probation 1,000 that he complete conditions upon primary court granted probation amount of he make restitution in the hours of service and that community $337,590. was the restitution order preliminary Defendant was advised that he contest the and amount and that could temporary imposition and after further elected to contest the restitution order order. Defendant $274,754. The orders the court reduced the amount of restitution to hearing were later stayed for of restitution service and community payment defend order the court ordered that In the restitution appeal. staying pending restitution until paid interest annum on unpaid ant shall pay percent per the restitution orders.27 a number of full. Defendant raises challenges trial court the recommendation rejected In restitution here the ordering the federal officer noted that officer. In his probation report probation QEP contracts and audit of the had conducted an investigation government funds, funded with federal the contracts were in part and had concluded that laws violations of federal conflict-of-interest engaged that defendant funds, from the state and had demanded restitution had misused federal $222,590, civil pending demand was the subject which amount the issue of restitution recommended that The officer probation proceedings. be left civil proceedings. the court con- officer the recommendation of probation rejecting to order restitution. it was that this was a case which required
cluded Const., 1203.04, I, Code, (a); art. subd. see Cal. (Former Pen. subd. § amount of the the full (b).) initial order represented The court’s restitution presented ability prosecution challenge to make restitution. 27Defendaint does and, despite ordered ability to make the restitution would have the evidence defendant did not being respond, defendant ability invited to being pay was at issue and advised that ability pay. contest his *61 to the four convictions. which rise gave contracts on the four funds expended the funds order from the restitution court deleted hearing On further contract. to the Sweetwater/Perondi attributable that, 1203.04, (a)(1), provided subdivision Penal Code section Former otherwise, “the court shall exist reasons extraordinary unless compelling make restitution” that the person of probation, as a condition require, was later this section a victim. Although involved victim if the crime 1995, 313, the time of defendant’s ch. (Stats. § 8), in 1995 repealed restitution as section defined (d) of that subdivision sentencing offenses and medical the value of stolen or damaged property, “full or partial payment witness to time as a spent due to or injury or lost and wages profits expenses, were caused by which losses or prosecution, assisting police or was he or she crime for which committing as a result of defendant set aside order must be that the restitution Defendant contends convicted.” the list of reimbursable do not come within the losses suffered here because 1203.04, (d). section subdivision in former Penal Code losses the state on money spent by General retorts that the The Attorney within the meaning “stolen” constitutes property contracts question he dictionary, section 1203.04. (d) Citing legal of Penal Code subdivision is: pos definition of “stolen” “Acquired, notes that a well-recognized sessed, act or taking, whereby of some or dishonest wrongful as a result retains which belongs obtains or possession property willfully person another, with the intent any given, without or beyond permission (or permanently.” of the benefit of ownership possession) owner deprive defendant’s conduct 1990) 1419.) Because (Black’s (6th Dict. ed. Law “sto constituted the state argument goes, expenditure was so wrongful, claimed, construction, is consonant it is len” Such a property. Thus, General Attorney argues of restitution.
rehabilitative purposes violation from a willful resulting loss “it is reasonable to conclude that in Penal word ‘stolen’ within the of the should fall scope of section 1090 noted, is for 1203.04, since, this section restitution under Code section rehabilitation.” did not mark. Defendant misses the General’s argument
The Attorney on to be improperly expended he caused them steal the funds question; were funds in interested. The question in which he was financially contracts to the tainted contracts districts to the local school pursuant disbursed ser- for their contractual district employees used to local school then pay funds. “retained” “obtained” or possession vices. Defendant never the funds did received And, who actually needless to say, employees Thus, definition dictionary properly that the cited even assuming steal them. in question the funds of stolen property, the statutory meaning defines (Cf. under that definition. v. United States Dowling were not even stolen 161, 3127]; L.Ed.2d (1985) 473 105 S.Ct. United U.S. Moreover, 1978) 564-565.) (9th F.2d even Cir. States Carman “stolen,” of the term some about the ambiguity meaning there was assuming *62 defendant. we to resolve in favor would be required ambiguity of two construc which is reasonably susceptible language “[W]hen construction which is more in a law that ordinarily tions used penal [*]Q The is entitled to the offender will be defendant adopted. favorable to the doubt, it out of a reasonable whether every question benefit arise[s] fact, construction of as the true of words or the language interpretation 250, (In (1959) 52 P.2d a Tartar Cal.2d 256-257 used in statute.” re [339 521, 814, 553]; accord, (1981) v. Cal.Rptr. Davis 29 Cal.3d People [176 the funds 186].) We with defendant that agree 633 P.2d therefore and consequently in this case did not constitute stolen expended property under nor to order trial court was neither authorized restitution compelled Penal Code 1203.04. former section provisions mean, however, to order that the trial court lacked authority That does have had discretion long a condition of Trial courts probation. restitution as enacted condition of As originally to order restitution probation. 1935, that when granting probation Penal Code section 1203.1 provided “may impose for cases” and “may court provide reparation proper conditions, as it determine are may fitting . . . other reasonable require done, be may that amends made justice may to the end that proper law, resulting to any person for the done any injury breach society for the reformation and from breach and generally specifically such 604, 2, (Stats. ch. of the probationer.” rehabilitation § “The inter has to mean restitution. courts term been construed “reparation” term in section 1203.1 to mean reimbursement reparation pret or from offense charged victims of for actual loss from flowing crime 550, 559 (1974) Baker related misconduct.” v. (People [113 amended, 248], Code sec Penal original.) italics in As presently Cal.Rptr. that court shall for restitution proper tion 1203.1 directs provide “[t]he 1203.1, Code, (Pen. (a)(3).) provides subd. It further “[t]he cases.” § a condition of shall probation shall consider the defendant as court whether Code, (Pen. or the Restitution Fund.” make restitution to the victim 1203.1, the court continues to (b).) subd. the statute Finally, provide § 1203.1, Code, (Pen. conditions . . . .” . . other reasonable “may impose. § subd. (j).)
Thus, court sentencing to vest the section 1203.1 continues Penal Code including of probation, broad discretion in considerations imposing Code section have us read former Penal restitution. Defendant would to order court’s sentencing authority upon as a restriction 1203.04 we not do. Such a construc- This as a condition probation. restitution discretion the trial court’s curtailing preexisting have the effect of tion would Penal the fact that condition of probation despite restitution as a to order over discretion to vest the court with broad 1203.1 continues Code section it is matters, states that Code section 1203.04 expressly former Penal such discretion, the court’s construed as a restriction upon probationary not to be was intended to implement constitutional that section and the provision (Cal. from wrongdoers. of victims restitution broadly proclaims right I, 28, Const., Court (b).) recently subd. As the California Supreme art. Cal.Rptr.2d 10 Cal.4th Carbajal observed in People 67], condition has been considered valid long P.2d “[restitution *63 authorization, the court concluded high Given this historical of probation.” 8 or in Penal Code section 1203.04 purports nothing Proposition “that discretion, under Penal Code section limit or the trial court’s abrogate 1203.1, victim’s of where the to order restitution as a condition probation conviction, defendant’s not the result of the crime underlying loss was one of the where the trial court finds such restitution will serve purposes but (Id. 1203.1, It Code section subdivision (j).” set out Penal discretion to order resti- follows a fortiori that the court retains sentencing of the defendant’s crimes.28 where the victim’s loss is the result tution Nevertheless, that because the trial court was under the misapprehension in deciding it did not exercise its discretion restitution was mandatory, Penal of under probation whether or not to restitution as a condition impose the cause to the trial section 1203.1. we shall remand Accordingly, Code a condition of restitu- court to exercise its discretion and determine whether of the of time and the nature tion should be Given the imposed. passage state, court to redetermine loss to the it is also for the appropriate asserted loss, of restitution. of if in the event it a condition the amount any, imposes that the defendant actually profit As we have it is not explained, necessary necessarily a violation does not order to violate section 1090. Similarly, not yet the trial court has entail a “loss” on the Since part government. restitution, we concerning had the to exercise its discretion opportunity of the record no whether on remand a further development express opinion of in this case. would loss support finding remand, contentions remaining
In of we do not address the view our the restitution concerning provision. “victim” that is entitled the state cannot be considered a 28Defendant contends contrary to has now been settled through probation. question a condition of This restitution 1, 80]; (People Crow 952, (1993) 864 P.2d Cal.Rptr.2d position. 6 Cal.4th [26 957-959 693].)
People v. Narron Cal.Rptr.
Disposition restitution is set aside and pay of that defendant probation condition its trial with directions to exercise discretion remanded court
the cause and, as a condition of probation whether to restitution determining impose so, has suffered loss then redetermine if to determine whether state of convic- other restitution. all respects judgment the amount are affirmed. and the order probation tion J.,
Blease, P. concurred. Acting NICHOLSON, J., Concurring Dissenting. I agree majority I order concerning the convictions are sound. disagree opinion as a condition probation. the order of restitution probation—specifically, view, it should affirmed. In my initiative, Constitution a 1982 Proposition
Added to California I, “It inten (b) mandates: unequivocal article section subdivision losses that all who suffer of the State of California tion the People persons criminal have the to restitution from right shall activity result *64 shall the losses suffer. Restitution they convicted of crimes for persons [<JH case, of the sentence the in every regardless ordered from convicted persons loss, unless in which a crime victim suffers or disposition imposed, the The constitu exist to contrary.” reasons extraordinary compelling to to tional amendment required Legislature “adopt provisions expressly (Ibid.) this . . .” section . implement 1983, It enacted the constitutional mandate.
In acted on Legislature 1203.04, which, case “In every section provided: former Penal Code the court convicted of a crime and is granted probation, where is person make restitution as that the shall a condition probation, person require, Code, 1203.04, (a).) The (Former Pen. subd. . . . . . .” . victim [t]o § for on as “full or payment statute went to define “restitution” partial or wages profits medical damaged expenses, value stolen or property, or assisting police to as a witness or in lost due to or time spent injury the defendant as result were caused by which losses prosecution, (Former Pen. or was convicted.” the crime for which he she committing Code, 1203.04, (d).) subd. § instead, funds; he did not steal the concludes the defendant majority Furthermore, we the majority, urges them to be expended
caused improperly. under of restitution were stolen for the purpose cannot conclude the funds resolve any ambiguity section 1203.04 because we must former Penal Code fundamental objective This approach ignores of the defendant. in favor construction, is, intent. discovery legislative statutory effectu of statutes for interpretation Court set the standard The Supreme 8, an initiative to of Proposition “Through passage 8. ating Proposition the State of California the voters of system, the criminal justice reform enactment of legislation pro to Constitution require the state amended exist, restitution reasons’ that, and extraordinary unless ‘compelling viding ‘in case ... a crime every convicted of from any be ordered person I, 28, Const., subd. art. (Cal. . . .’ a loss . victim suffers which a crime 1067, 1077 Cal.Rptr. 5 Cal.4th .)” v. Broussard (b) (People 1134].) 856 P.2d of receiving counts Broussard, to two defendant guilty pleaded $5,545 in and ordered pay sentenced prison He was
stolen property. order court lacked power the trial contending He restitution. appealed, 13967, subdivision Code section under Government him restitution to pay is when the defendant , of restitution orders (c) the statute that governs 1069.) pay the defendant (5 It requires Cal.4th at p. to prison. sentenced Code Former Government “economic loss.” to the “victim” for restitution death who sustains injury a “victim” as person defined “[a] section 13960 a direct result of a crime.” Code section in Government on the definition of “victim” Relying restitution only be ordered to he could pay the defendant asserted Broussard, 5 Cal.4th (People supra, or death. physical injury Instead, it found that this Court interpretation. The Supreme rejected Prop mandate to effectuate its constitutional intended to follow Legislature seen, the Legislature as we have and most important, osition 8: “First *65 28, Const., I, (b)) art. subd. (Cal. constitutional mandate under an express in case ... every ‘in to order restitution laws trial courts requiring to enact requirement . . .’ This constitutional victim suffers a loss . which a crime injury from physical that result distinction between losses makes no Thus, chose to ignore the Legislature unless that are economic. purely losses it through passage on imposed that the voters of California the obligation Constitution, 28, it must have I, (b) of the section subdivision of article victims, all crime section protect 13967 intended that Code] [Government “ intent ‘The prevails at (Id. their loss.” p. of the nature of regardless to conform to the will, so as letter, be read letter if possible, and the over ” (1988) 45 1071, Deukmejian v. (Id. Lungren quoting of the act.’ p. spirit court 115, 299].) 727, Accordingly, P.2d 755 Cal.3d 735 Cal.Rptr. [248 loss, injury, without physical economic includes purely held that “injury” (Id. at pp. stolen receiving property. crime of the defendant’s associated with 1075-1077.)
362 with did the Broussard court Government Code section respect
As 13697, (c), interpret subdivision we must former Penal Code section 1203.04 Constitution, I, of California article to conform to constitutional mandate 28, no (b), because there is indication Legislature section subdivision could, even if it this constitutional obligation. intended to ignore, express 1075; Broussard, (See People v. 5 Cal.4th at see also v. People supra, 764, 117, 731].) (1996) 784-785 P.2d Cal.Rptr.2d Cal.4th [55 Cruz so, in Penal “stolen as used former I conclude that term property,” Doing 1203.04, (d) wrongfully includes appro- Code section subdivision property Indeed, steal,” “to in broad interest. as a result of conflict of felony priated or sense, Dictionary taking appropriating is defined in Oxford English another, or immaterial. material whether dishonestly anything belonging laws, it of interest made in the conflict an is violation of When appropriation the Legislature is no indication There is dishonest as a matter law. of an assortment term “stolen to refer intended the property” statutes. theft and stolen receiving property narrower definitions used we the rule of incanting lenity—that avoids this majority analysis by in favor of the defendant. criminal statute must an ambiguous interpret However, the way Penal Code section 1203.04 if we are to construe former 8, it, is, then Proposition as an effectuation intended Legislature we “stolen to include funds improperly appropriated must construe property” of “stolen interpretation prop- This precludes due to conflict of interest. when some only The rule of lenity “applies in favor of the defendant. erty” (In re Pedro T. the law” as to the enacting doubt exists legislative purpose 74, 1022]) and must 884 P.2d (1994) 8 Cal.4th Cal.Rptr.2d [36 Phelps intent. when it collides legislative (People yield Here, no 855].) there is doubt con- Cal.App.4th Cal.Rptr.2d Indeed, if could be invoked lenity the rule intent. cerning legislative intent, statute any penal could nullify defeat a skillful semanticist legislative sense favor to its narrowest each constituent word phrase confining defendant. section 1203.04 Penal Code repealed former Legislature shall, extent “Restitution amended section 1202.4 to provide, part: reimburse the victim to fully be of a dollar amount that sufficient possible, *66 of the victims, a result loss incurred as every or for determined economic conduct, or (1) Full all of the following: defendant’s criminal including [U (Stats. . . .” damaged or property. for value of stolen partial payment 1995, 313, 8, added.) legislative clarifies that the ch. 5 & italics This §§ loss, for “stolen just property,” all intent was to reimburse for economic (Oldham (1991) 235 1059 [1 Cal.App.3d construed. v. narrowly Kizer scheme statutory of a amendment Cal.Rptr.2d [subsequent 195] view, intent].) clarification of legislative Accordingly, my former Penal Code section 1203.04 for provided restitution this case for mandatory state’s losses.
The defendant contends the evidence does not the trial court’s support conclusion state suffered a QEP loss as the result of the actually conclusion, contracts. In the court reaching resti- correctly recognized tution can be ordered of only upon finding, by preponderance evidence, of loss caused to the victim the defendant’s (People conduct. 32].) Baumann The court Cal.Rptr. found, fact, as a the state suffered loss. proven The court’s finding substantial evidence. supported by essentials, to their these
Stripped contracts are simple. defendant staff, Smith, ordered his over the of vigorous objection James deputy, for the state to arrange funds to certain pay school districts that were not to, not, and did expected do other than serve as conduits for anything of the payment salaries individuals who worked for a private corporation. In order to avoid such things competitive bidding, of General Department like, Services and the oversight, the contracts were set with the school up districts as named contractors and fictitious assigned local duties that were never intended found, to be the districts. performed by As trial court districts, school intended, as the defendant did more than float fully nothing the funds to QEP hired employees before the contracts were made.
Because Dunbar Page, QEP and Law worked for QEP donated districts, services to some school the defendant asserts it must be concluded the state derived benefit from the contracts and thus did not suffer a loss. To IX, the contrary, article section of our state Constitution that no provides be, part public school shall system or directly indirectly, transferred from or under the placed jurisdiction other than one any authority included in the school public Dunbar and system. By arranging keep Page, Law on the of the payroll school public while worked exclu- system they QEP (free from sively direction or control any by any part public XVI, school system), defendant violated this Article provision. sections and 6 of the Constitution state officials from preclude state using any money for the benefit of or from corporation making any gift grant public funds to QEP private corporations. Regardless whether services to donated contracts, school districts not identified in the of its compensation was its employees responsibility. By to use state funds for the arranging payment QEP’s while were in the sole compensation employees they QEP, employ defendant violated these provisions.
The evidence shows the defendant QEP collected rent from and his wife words, collected a In other received salary. QEP. income from they During *67 it out on “I’ll our stipulate helped stated: defendant investigation, from Department to take money use of contracts income.” This improper akin to laundering. for himself is money of Education and turn it into income (See 1995) 796.) (D.N.J. 903 F.Supp. U.S. v. Parlavecchio Parlavecchio, board of by city In were employed defendants their thus individual concealing education. established They corporation, identities, which was leased to for the later bought corporation property effect, received In the defendants use as an school. elementary the board for laws. of the conflict interest the board in violation rental from payments indict- 789-790.) court their (903 The federal district at upheld F.Supp. pp. transfers “the defendants caused because laundering ment on money charges held by [the Board to bank accounts checks from the specified of rent to accounts from corporation’s] and then caused transfers [the corporation] defendant,” transfer constituting the latter accounts held each by specified (Id. money laundering. to Education’s Department employees
The defendant directed an experienced with the districts. Donna Salaj, unusual contracts process contracts in which had never seen contracts for manager department, to directions to the district pass w«s to a school district with money paid Yasitis, assistant superintendent to Peter money along private company. District, seen the depart- School had never business for the Fremont Unified The defend- for a school work a private corporation. ment fund employee he solicited QEP, benefit of also ordered these contracts for the only ant not QEP’s do for QEP, which he did not competitors. private funding contracts in favor used his issue position evidence clear the defendant launderers did the QEP QEP. money and then collected income from As Parlavecchio, of public set in motion masked expenditures the defendant to his benefit. eventually which inured money personal there are substantive and are to be expended, Whenever funds public include honored. These that must be procedural requirements scrupulously and compliance authorization for the expenditure statutory regulatory and advertisement bidding such procedural requisites competitive grant established for funds to legally and invitation apply pursuant funds, under the must be made expenditures case of federal programs. established of Control regulations of the State Board auspices pursuant Code, which a 12000 et transaction (Ed. Any by that board. seq.) be made to regu- district federal funds must pursuant local school acquires Code, (Ed. Instruction. of Public Superintendent lations established Here, Instead, the objections over 33113-33114.) that did happen. §§ staff, authority, funds without the defendant public knowingly expended *68 procedures, and utilized ignored mandatory legal illegal contracts crafted to conceal their true Our nature. law considers such behavior a carefully (Pen. felony of funds and attaches misappropriation public consequences. Code, 424-425; (1978) v. Battin 650-651 People §§ 248].) 95 A.L.R.3d Cal.Rptr.
Just as Government Code sections 1090 and were ensure designed officials, absolute and undivided these constitutional and loyalty by public others, were to ensure absolute designed statutory provisions, protection of the fisc. Public funds can be only public expended pursuant duly established only a manner that will ensure control authority public over While the defendant asserts the accountability expenditure. state received some benefits from the not in the state is a expenditures, to ascertain or measure position asserted benefits because the defendant any and executed these contracts with the form arranged any intent preclude He for public succeeded When accountability. time. funds are public expended by official in an public unauthorized manner and without complying procedural to ensure control and requisites designed public over accountability expenditure, then must be considered expenditure a loss to the state. substantial evidence the trial Accordingly, supports court’s finding that the state suffered financial loss as a result of the defendant’s behavior.
I would uphold the trial court’s restitution an order as appropriate appli- cation of former Penal Code section 1203.04.
Even for accepting, purpose argument, the conclusion majority’s that restitution is not mandated former Penal Code section 1203.04 and the trial court did not exercise its discretion to order restitution under Penal 1203.1, Code section error was any procedural harmless.
“No shall be set judgment aside as to ... error matter of any unless, cause, procedure, after an examination the entire including evidence, the court be of shall that the error of has opinion complained Const., VI, resulted in a (Cal. art. miscarriage justice.” Despite mandate, this constitutional fails to error majority harmless perform analysis. restitution, ordering trial court relied on former Penal Code section
1203.04, which makes restitution mandatory, regardless purpose restitution. When under restitution former Penal Code section imposing 1203.04, there is no reason to consider the restitution because purpose it must be imposed, absent compelling circumstances. extraordinary Yet, “Furthermore, court continued: v. Narron [People *69 (237 693)], the Court stated that restitution has Cal.Rptr. 724
Cal.App.3d of actual losses. Restitution additionally value victim recovery beyond future deterring criminality rehabilitating serves the purpose when is effectively government All of aims are served criminal. these of Penal Code section through receipt for its actual losses compensated The Court finds that all three will purposes 1203.04 restitution. [Citation.] to the state this case.” ordering served the defendant to restitution pay Penal section 1203.1 of a restitution order under Code aims primary victim, (2) (1) criminality, deterrence future are compensation (1987) Narron (3) (People of the criminal. v. rehabilitation 724, consider 693].) these are the three Cal.Rptr. Accordingly, [237 to order trial decision whether concerning ations that into the court’s go probation. restitution, is law on the court commented:
During hearing “[T]he fact, can, in for reformation and for deterrence clear that a court perfectly was that restitution order trial court’s statements Despite restitution.” 1203.04, those beyond Penal section it went under former Code mandatory note for restitution would be served. statements its order to the purposes Furthermore, of the mandate contained the trial court was aware Constitution, I, (b) subdivision victims giving California article section order “California Court to restitution. It stated: law right requires Restitution shall be for the actual loss state. restitution experienced loss, suffers from felons in case in which the victim every ordered convicted (See Cal. contrary. reasons exist extraordinary unless compelling I, Const., (b).)” art. no the trial court
A entire case reveals reasonable doubt review 1203.1 if it be- restitution under Penal Code section would have ordered former Penal Code section lieved such an order was under appropriate of an outcome more favorable 1203.04. There no reasonable probability Cal.2d (See on the defendant remand. Watson People Therefore, 243].) should be affirmed. P.2d the restitution order A was denied 1996. petition rehearing September