Lead Opinion
Opinion
This case involves serious allegations against Robert E. Stark, the auditor-controller of Sutter County. In that position, Stark made decisions about allocations and expenditures of public money. Stark had significant disagreements with the Sutter County Board of Supervisors (Board) and the county administrative office (CAO) regarding questions of public finance. The Sutter County District Attorney’s Office claims that Stark violated statutes, county rules and Board resolutions detailing the requirements of his office. Stark asserts the matters at issue were complex transactions in which he exercised his professional judgment as auditor-controller and handled the matters as the law and governmental accounting rules required. A grand jury ultimately indicted Stark on 13 counts of violating Penal Code section 424
1. Does a violation of section 424 require intentional violation of a known legal duty or is it a general intent crime?
2. May a defendant move to set aside an indictment under section 995, subdivision (a)(1)(B), on the ground that grand jurors were misinstructed on the scienter required to establish an element of the charged offense?
3. May a public official be removed from office pursuant to Government Code section 3060 in the absence of proof of a purposeful refusal to follow the law in carrying out the duties of his or her office?
We resolve these questions as follows:
1. At issue here are four provisions of section 424, all of which proscribe general intent offenses. Three of those provisions criminalize acting without authority or failing to act as required by law or legal duty. We conclude those offenses additionally require that the defendant knew, or was criminally negligent in failing to know, the legal requirements that.governed the act or omission.
2. A claim of misinstruction on the mens rea of a crime may be challenged under section 995, subdivision (a)(1)(B). It raises the possibility that, as instructed, the grand jury may have indicted on less than reasonable or probable cause.
3. Based on the record in this case, we need not and do not decide the question of whether willful misconduct under Government Code section 3060 requires a knowing and purposeful refusal to follow the law. Stark does not disagree with the instruction on mental state given by the district attorney to this grand jury. Rather, he claims that later closing argument by the district attorney and accompanying PowerPoint slides invalidated the instruction on mental state, requiring that the accusation be set aside. We address this claim as to the district attorney’s argument and PowerPoint slides and conclude that it is without merit.
4. In a motion to set aside an indictment or accusation, a defendant claiming that the district attorney suffered from a conflict of interest during the grand jury proceeding must establish that his right to due process was violated.
I. FACTUAL AND PROCEDURAL BACKGROUND
We begin with a general overview. The specific counts of the indictment and accusation that remain in this appeal will be described more thoroughly in the discussion section.
The Board consists of five elected members. Stark has served as the elected auditor-controller of Sutter County since 1985. His primary duty is to serve as the chief accounting officer for the county. Larry Combs was the county
On September 7, 2004, Combs presented a report to the Board entitled “Analysis of Performance of Auditor-Controller & Recommendation for Action.” The report criticized Stark for actions dating back to 1988, and discussed recent “serious problems” regarding his performance, which are the basis for some of the allegations in the indictment and accusation. Specifically, the report mentioned the following: Stark filed the final budget for fiscal year 2003-2004 six and one-half months late; Stark acted unilaterally in amending the county budget even though state law reserves that authority to the Board; Stark claimed he had the authority to approve the rates some county departments were charging other county departments for services provided; Stark withheld overtime pay from the county’s firefighters in January 2003 based on his interpretation of the county’s memorandum of understanding (MOU); and, in the final budget for 2003-2004, which Stark belatedly filed in June 2004, Stark unilaterally transferred money from the county’s general fund reserve to Sutter County Waterworks District No. 1 (Waterworks District).
In fall 2004, the Sutter County Grand Jury, in its oversight function, began an informal investigation of the auditor-controller’s office. The Sutter County District Attorney’s Office was not involved in these proceedings. On February 9, 2005, the last day of the informal investigation, Stark appeared at the request of the grand jury and answered questions.
A formal grand jury proceeding began on March 3, 2005, conducted with the assistance of Sutter County District Attorney Carl Adams. Multiple days of testimony concluded on May 3, 2005. Additionally, the grand jury received exculpatory material from Stark.
On May 4, 2005, District Attorney Adams instructed the grand jury on 13 counts alleging violations of various provisions of section 424 and 15 counts alleging willful and corrupt misconduct under Government Code section 3060. The grand jury returned the indictment and accusation on all counts.
Stark moved to set aside the indictment and objected to the accusation. The superior court set aside one count of the indictment and two counts of the accusation.
As to the issues for which we granted review, the Court of Appeal ruled that, as to certain provisions of section 424, a defendant must know that his actions or omissions regarding public funds are without legal authority. As to the remaining counts for which that mental state is required, the Court of Appeal concluded that grand jurors “could reasonably entertain a strong suspicion” that Stark had such knowledge.
Regarding Stark’s claims of instructional error as to section 424, the Court of Appeal concluded that section 995 does not provide a basis to set aside the indictment on the ground of instructional error. The court held that Stark’s claim was cognizable only as a potential violation of his right to due process, and that Stark failed to make such a showing.
As to the mental state required to support an accusation under Government Code section 3060, the Court of Appeal concluded that “[tjhere must be willful behavior, and that behavior must amount to misconduct . . . .” Because Stark identified no authority permitting a challenge to the accusation for instructional error, the Court of Appeal rejected his attack on the prosecutor’s instructions and comments to the grand jury. Even assuming Stark could argue that the instructions violated his due process rights, he made no such showing.
Finally, the Court of Appeal rejected Stark’s argument that the mere appearance of a conflict of interest by the Sutter County District Attorney’s Office during the grand jury proceeding could support a section 995 motion to set aside the indictment. The Court of Appeal concluded that such a claim was not cognizable under that statute, but must be brought as a challenge to
II. DISCUSSION
A. Section 424—Mental State
Section 424 was enacted in 1872 as part of the original Penal Code. More than 80 years ago, this court explained in People v. Dillon (1926)
The current statute contains seven subparts, all of which were part of the statute as originally enacted, although renumbered by amendment in 1905. (Stats. 1905, ch. 59, § 1, pp. 53-54.) The remaining counts of the indictment allege violations of four of those provisions:
“(a) Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:
“1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another; or [][]... H]
“3. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same; or [][].. . [][]
“6. Willfully omits to transfer the same, when transfer is required by law; or,
“7. Willfully omits or refuses to pay over to any officer or person authorized by law to receive the same, any money received by him or her under any duty imposed by law so to pay over the same;—
*381 “Is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state.” (§ 424(a).)
1. The Indictment
We begin with a review of the evidence presented to the grand jury as to the counts of the indictment remaining on appeal.
a. Third Count (§ 424(a) 1)
The People claim that Stark misappropriated public money in violation of section 424(a) 1 when, without authorization by the Board, he transferred money in the 2003-2004
The county’s annual budget is essentially an authorized spending plan for the year. The budget includes all of the operating departments of the county, as well as special districts over which the Board serves as the governing body. The budget is divided up into funds. Some funds consist of a single department. Other funds represent multiple departments. Assistant county administrator Curtis Coad testified, “We have to balance the budget. That means that in every fund in the budget the revenues have to equal the appropriations.”
By June 30 of each year, the county administrative officer must submit a proposed budget to the Board. The Board then approves the proposed budget and holds budget hearings to be completed by August 30. By means of a final budget resolution, the Board must adopt the final budget by October 2. The auditor-controller then has until December 2 to publish the final budget and file it with the clerk of the Board.
County Administrator Combs testified that the final budget resolution authorizes the auditor-controller “to prepare the final budget with such adjustments as are necessary within restrictions that are contained in this resolution.” Combs explained that the budget resolution authorizes two types of adjustments. First, the auditor-controller can “adjust interfund and intrafund accounts to reflect the effect of amendments and modifications adopted by the Board, and [can] adjust estimates of State and Federal revenue which are affected by the amendments and modifications, subject to review and approval by the County Administrative Officer.” Second, the budget resolution allows the auditor-controller “to adjust the appropriation for contingencies in each fund, as necessary to balance the fund and the budget, and,
Various county funds maintain reserves. Within the county general fund there are several different reserves, such as those for capital expenditures and vehicle replacement. At issue in this count of the indictment is the general fund’s general reserve (hereafter general reserve). The general reserve is subject to unique restrictions. The Board is legally authorized to reduce or increase the amount of the general reserve during the budget process. Once the final budget is adopted, however, that reserve can be accessed only in an emergency declared by a four-fifths vote of the Board.
One of the special districts governed by the Board is the Waterworks District, an enterprise fund that provides sewer and water services to the community of Robbins. Under an enterprise fund operation, people in the area pay for the cost of services. No money from the county general fund is required to operate the Waterworks District. The Waterworks District’s sewer system was installed and purchased by a grant obtained by the county on behalf of the residents of Robbins. The Board had decided not to fund the depreciation of the sewer system because those expenses would have had to be financed by user fees, which the Board considered too burdensome for the area residents.
In fiscal year 2003-2004, Stark and the CAO had significant disagreements over accounting principles applicable to the Waterworks District. Stark’s position was that the Waterworks District fund must be included in the county budget. Stark considered the depreciation of the water system an expense that had not been funded, resulting in an imbalance in the fund of $336,000. Because the Waterworks District fund was out of balance, the county budget was out of balance as well.
The CAO disagreed. Assistant county administrator Coad told the grand jury that enterprise funds do not need to be included in the county budget, but the Waterworks District fund was included “more for public information and so we can include them in our hearing.” Thus, if the Waterworks District fund was out of balance, it had no effect on the overall county budget.
When the final budget for fiscal year 2003-2004 was released on June 14, 2004, the CAO discovered that the Waterworks District budget included a contribution from the county general fund of $336,485. Assistant county administrator Coad explained that Stark, through a series of transactions, took
Coad told the grand jury that nothing in the final budget resolution authorized Stark to transfer money from the general reserve, “which belonged to all the People of Sutter County,” and give it to the Waterworks District serving the community of Robbins alone. Such a transfer from the general reserve required a vote of four-fifths of the Board and “special findings of general public benefit.” The Board ordered Stark to return the money to the county’s general fund. Stark complied.
On February 9, 2005, the grand jury interviewed Stark during its informal investigation before the criminal grand jury proceedings began. A copy of this transcript was entered into evidence during the criminal grand jury proceedings. During the interview Stark acknowledged that transfers from the general fund must be authorized by the Board, but stated he had been given this authorization. Stark elaborated on his answer. He told the grand jury that the Waterworks District was out of balance due to unfunded depreciation costs and advised the CAO that “the debits don’t equal the credits.” Stark claimed that the proposed budget adopted by the Board specifically recommended a “transfer in” to the Waterworks District to balance the budget. Stark testified that after reviewing all the funds, he could not find “the recognition of the transfer-out that was the source of funds for the transfer-in for the [Waterworks District].” “And since I have to balance the budget... I set up the . . . transfer-out for the general fund, which was the only place the money could actually come from to balance [the Waterworks District], [f] And under the direction that the Board gives me to balance the budget, I can very well read that as saying that I was authorized to set that up and the Board did in fact approve that transfer.” Stark told the grand jurors that under the final budget resolution, he is authorized by the Board to balance the budget and transfer money from the reserves.
b. Ninth Count (§ 424(a) 6)
The ninth count of the indictment alleges that between March and May 2005 Stark violated section 424(a) 6 by “wilfully omit[ting] to transfer [public moneys], when transfer was required by law, to wit: posting] journal entries reflecting payment due and income earned by the Sutter County Department of Information Technology Services.”
The Department of Information Technology (IT department) provides computer services for the entire county. The IT department collects payments
As of 2005, the IT department had been operating for five years. For the first four years, calculation of appropriate billing rates was accomplished through an informal process in which the IT department, Stark, and the CAO would agree on a methodology. Stark would set the rates. However, on September 7, 2004, the Board delegated the authority to set rates to the county administrator.
At the beginning of the 2004-2005 fiscal year, the IT department had approximately $400,000 to $500,000 carried over from the previous year because the department’s revenue exceeded its expenses. The IT department operated on that money until the beginning of November 2004. Bernadette Kucharczuk, director of the IT department, explained that the department’s revenue is never enough to maintain a positive cashflow to yearend when all claims are eventually paid. In each preceding year, the IT department operated in the red. Final budgets for the IT department anticipate that it will operate in the red. Nevertheless, Stark had never refused to post entries in earlier years.
In the 2004—2005 fiscal year, the process for setting the IT department’s billing rate began in December 2004. On January 18, 2005, County Administrator Combs forwarded the billing rates to Stark. The IT department then submitted journal entries to the auditor’s office for payment of services it had rendered in the previous six months.
Stark refused to process the journal entries. Stark maintained that he needed adequate documentation to assess whether the rate changes were cost based and calculated in accordance with generally accepted accounting principles. On January 27, 2005, Stark requested that the IT department provide him additional information, including an accounting for certain costs, in order to “complete a thorough analysis of the rates submitted by the IT Department.” Although the IT department responded, Stark notified Kucharczuk that the response was inadequate and requested more information. Kucharczuk responded to this request, and later provided additional information requested by Stark. Kucharczuk testified that although the rates changed “somewhat” in fiscal year 2004—2005, the methodology for setting the rates was the same as had been used for the previous four years. In those previous years, when Stark’s office was involved in the rate-setting process, journal entries were processed and claims paid.
Additionally, at the beginning of February, Stark stopped paying the claims submitted by the IT department for services provided to the department by outside vendors. Kucharczuk was told by the auditor-controller’s office that payment could not be made because the IT department had a deficit balance, a position Stark had not asserted in prior years. At the beginning of March, at least $185,000 in bills from outside vendors remained unpaid. At the same time, Stark was refusing to process journal entries for the IT department totaling more than $1 million.
On March 1, 2005, the Board directed Stark to make the journal entries for the first and second quarters of the fiscal year and to pay the outstanding claims against the IT department. Stark told the Board that he did not approve of the billing rates for processing the journal entries and was having difficulty obtaining documentation from the IT department in support of those rates. Kucharczuk told the Board that she had worked with Stark to provide him documentation. The next day, Stark told the county treasurer, Jim Stevens, that he would not process the journal entries because he disagreed with the billing rates. At the Board meeting on March 8, 2005, Stark informed the Board that he would not post the journal entries for the IT department because he had not yet received the requested documentation. The Board minutes indicate that a “[d]iscussion ensued regarding various emails and meetings on trying to obtain clarification on what the auditor-controller needs in order process the journal entries.”
As of March 23, 2005, the date of Kucharczuk’s final appearance before the grand jury, Stark had paid the IT department’s outstanding bills but had still not posted the journal entries.
The tenth count of the indictment alleges that Stark violated sections 664 and 424(a) 7 by “wilfully and unlawfully attempting] to withhold payment of wages to employees of the Sutter County Department of Information Technology Services.”
During the same timeframe covered in count nine, the IT department was also faced with payroll obligations. Stark took the position that the IT department’s payroll expenses could not be met because of its negative cash deficit. He relied on the county’s deficit fund cash policy, which provides that if a fund’s deficit cannot be corrected within 30 days, the auditor-controller should notify the Board of the need for a general fund loan to the deficient fund. Stark told county treasurer Jim Stevens that on March 1, 2005, the Board had denied his request for a general fund loan. Stevens testified that stopping payroll accounts when a department is running a deficit is not part of the deficit fund cash policy. Stevens explained that certain departments, including IT, typically have a negative cash balance at certain times of the year for various reasons. Stevens noted that for the preceding three fiscal years, the IT department had run negative balances, but its bills, including payrolls expenses, had always been paid by the auditor-controller’s office. Stevens also said that if pending journal entries were processed, the IT department would have a positive cash balance of $380,000.
On March 8, 2005, Stark told Sylvia Oakley, an accountant in his office, that “upon advice of counsel, I have no choice but to ask you to stop direct deposit payment for the IT department.”* *****
On the evening of March 8, Stark sent an e-mail to all IT department employees confirming that he had cancelled direct payroll deposits and planned to issue payroll warrants. He advised that unless the Board made funds available as he had requested, he would be required to issue registered warrants. Stark also sent a memo to the treasurer, Stevens, that evening stating, “Your refusal today to comply with our lawful request has prevented these [payroll] payments to employees. If you continue your refusal of doing your duty to register the warrants, you are preventing the lawful payments of claims against the county.”
At its regularly scheduled meeting that night, the Board voted to refer the matter to the state Labor Commissioner if Stark refused to pay the IT department employees on March 11. Stark issued paychecks and the IT department employees were paid on March 11, 2005.
d. Eleventh Count (§ 424(a) 3)
The eleventh count of the indictment alleges that Stark violated section 424(a) 3 by knowingly keeping a false account or making a false entry in the “financial books and records for the County of Sutter for fiscal year 2003-2004.”
Marilee Smith conducted an outside audit of the county’s books for fiscal years 2002-2003 and 2003-2004. She explained that her certified public accounting firm begins its review of the county’s financial records at the end of each fiscal year. Smith testified that eventually “we put all the financial statements together and any adjustments that we think should be posted. We come up with what we call proposed audit adjusting entries. We submit those to the county along with draft financial statements. We let the county, both the county administrator and the county auditor-controller review the proposed audit entries, and look at the draft financial statements, make any comments they might have, and then we would issue our report on those financial statements.”
Smith explained that if her firm finds an error or a misclassification in an account, the firm writes an adjusting journal entry to correct the account’s balance. She explained that her firm issues its opinion on the county’s financial statements, which includes the journal entry adjustments.
In fiscal year 2003-2004, Smith again audited the county’s books. She began her audit with the ending fund balance from the prior 2002-2003 audited financial statement. However, Smith discovered that Stark had posted some, but not all of the adjusting journal entries from the previous year’s audit. Thus, the ending fund balance on the county’s books differed from the balance in the prior year audit report.
e. Twelfth Count (§ 424(a) 7)
The twelfth count of the indictment alleges that Stark violated section 424(a) 7 by “wilfully and unlawfully withholding] wages earned by employees of the Sutter County Fire Safety Unit.”
The county and the union representing the county’s firefighters entered into an MOU in 1985, providing for eligible employees to earn overtime for all authorized work in excess of 212 hours in a 28-day work period. A later MOU, entered into in 1990, provided for the establishment of an overtime account, to be used at the discretion of the fire chief to pay firefighters for any voluntary overtime worked. No changes were made to these provisions in the subsequent MOU’s that were in effect through 2005. A change in the terms of the MQU regarding benefits must be negotiated between the county and the collective bargaining group.
Because the firefighters regularly worked 240 hours in a 28-day work period, they automatically put in overtime hours during each work period. During the negotiation of the 1985 MOU, it was agreed that if a firefighter took sick leave or vacation in a given work period, that leave would be deducted from the appropriate leave balance, and the employee would still be paid overtime.
In December 2002, Richard Martin, a shift lieutenant with the county’s fire department, noticed there was no overtime on his paycheck for the work period in which he had taken leave, and his leave balance had not been reduced. After an unsuccessful attempt to resolve the matter with Stark’s office, Martin called the county’s personnel director and received his overtime pay later that day.
The following month, January 2003, another issue arose when Martin learned that Stark intended to stop paying the firefighters for overtime in cash and intended to give them compensatory time off instead. According to
During the two pay periods in January 2003, the firefighters were not paid for their overtime, but received compensatory time off. After several meetings with various county personnel to discuss how firefighters should be compensated for overtime, Stark maintained his interpretation of the MOU as requiring paid leave rather than cash was correct.
On January 28, 2003, Stark sent a memo to members of the fire safety unit advising them the “incorrectly prepared payroll documents had been adjusted so that we can pay you in accordance with the MOU,” meaning that firefighters would receive compensatory time off rather than cash. Referring to his interpretation of the MOU, Stark stated: “[T]he effect of following the terms of the MOU’s is that when overtime is involved, your cash pay is less than it was before the erroneous interpretation and unauthorized cash payments.”
Additional meetings were held on January 29 and 31, 2003. Richard Hall, the county’s community services director, attended the January 31 meeting. Hall testified that he, County Administrator Combs and county counsel explained “very clearly to Mr. Stark that [cash for overtime] is the way to read the MOU, and there was no other valid interpretation.” That night, Stark issued and delivered checks for overtime payments.
Stark sent a memo to County Administrator Combs on February 12, 2003, stating that “[t]he determinative factor upon which the Auditor-Controller based his decision was Counsel’s advice that since the payments had been made for 13 years it had become past practice and the county had no defendable legal position to do otherwise.” Stark noted in the memo that while county counsel maintained that the applicable rules were “unambiguous” with regard to the cash payment of overtime, Stark “absolutely disagrees with this premise.” Stark detailed his interpretation of the MOU. This memo was in evidence before the grand jury.
f. Thirteenth Count (§ 424(a) 7)
The thirteenth count of the indictment alleges that Stark violated section 424(a) 7 by “wilfully and unlawfully withhold[ing] wages in the cumulative amount of $1,969.51 earned by retiring employees of the County of Sutter.”
Sutter County personnel director Joann Dobelbower testified that a county rule provides that when a county employee retires on a day preceding a holiday, the employee will be paid for the holiday. She stated this rule has
Dobelbower, after reviewing the MOU and county rules, contacted Stark, and advised him that these employees should be paid for the holiday. Stark disagreed. As of the date of Dobelbower’s grand jury testimony on May 3, 2005, the 10 employees had still not been paid.
2. Analysis
As to the counts at issue, we first consider the mental state required for those crimes defined in the provisions of section 424 that refer to authorization of law or legal requirements. Section 424(a) 1 applies to a defendant who appropriates public money to his own use or the use of another without authority of law. Section 424(a) 6 applies when a defendant willfully fails to transfer public money, if that transfer is required by law. Section 424(a) 7 applies when a defendant fails or refuses to disburse money, as required by a legal duty. We separately discuss section 424(a) 3, which applies when a defendant knowingly keeps a false account or makes a false entry in an account. Section 424(a) 3 does not refer to any legal authorization or duty in defining the conduct that it makes criminal.
The People claimed in the trial court and the Court of Appeal that section 424 requires only a general intent to do the act or make the omission, without a further mental state. The Court of Appeal rejected this argument. It held that a defendant must have appropriated public money, knowing that his action was unauthorized (§ 424(a) 1); willfully failed to make a transfer of money knowing the transfer is required by law (§ 424(a) 6); and willfully failed or refused to disburse money, knowing he was under a legal duty to do so (§ 424(a) 7). Here, the People now agree that a defendant must act or fail to act with knowledge of the unlawfulness of his actions, but urge that the mental state can be satisfied by either actual knowledge or criminal negligence.
Applying long-standing principles of criminal intent, we reaffirm that the violations of section 424 at issue are general intent crimes. Further, settled authority teaches that even general intent crimes often require some kind of knowledge. We first resolve whether the applicable provisions of section 424 require any additional mental state beyond a general intent to do the act.
More than 80 years ago in Dillon, supra,
Dillon argued the Legislature did not intend that section 424 should apply to the facts of his case. He asserted that he should have been prosecuted for embezzlement under section 504, which requires a specific intent to defraud. (Dillon, supra, 199 Cal. at pp. 5-6.) The Dillon court rejected this claim, observing that while embezzlement requires “the specific intent to appropriate [another’s property] to one’s self with a fraudulent intent” (id. at p. 11), the framers of section 424 did not intend “to incorporate or adopt, by implication or otherwise, the elements essential to constitute embezzlement as defined by section 504” (Dillon, at p. 9). Rather, “the subject matter and the language of section 424 clearly indicate that the legislative mind was intently concerned with the single, specific subject of the safekeeping and protection of public moneys and the duties of public officers in charge of the same.” (Dillon, at p. 6.) To this end, a violation of section 424 “is committed by a public officer when he uses public funds in a manner forbidden by law even though he may have no fraudulent intent when he does so. . . . It is sufficient that he intentionally committed the forbidden act.” (Dillon, at p. 7.)
There was no question that Dillon knew he acted without lawful authority. He did not claim otherwise. Instead, he argued that even though he knew the act was unauthorized, he had no specific intent to defraud, and that the city was reimbursed. The Dillon decision was limited to clarifying that violations of section 424(a) 1 and 2 are general intent crimes. “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Hood (1969)
In reaching its general intent conclusion, the Dillon court relied on section 20, which provides: “In every crime or public offense there must exist
The Dillon court had no occasion to consider what knowledge, if any, is required for a violation of the statute because the issue was not before it. In the years since Dillon, this court has not further addressed the mental state required for a violation of section 424. We do so now, in light of more recent jurisprudence.
Thirty years after Dillon, this court clarified that the “intent” referred to in section 20 means wrongful intent. (People v. Vogel (1956)
Vogel held the ruling was error. It emphasized that the “intent” provided in section 20 is wrongful intent, and thus for bigamy, as in other crimes, there must be a union of act and wrongful intent. (Vogel, supra,
In disapproving contrary authority, the Vogel court relied in part on the reasoning of the English case of Regina v. Tolson (1889) Law Rep. 23 Q.B.Div. 168, 181, cited in Matter of Application of Ahart (1916)
The rationale for this long-standing rule is that an act is unlawful only if done with wrongful intent. In Vogel, supra,
Thus, the Vogel court recognized that wrongful intent requires that a defendant know the material facts. This clarification of section 20 was significant in view of the expanded creation of strict liability statutes. The traditional rule is that some form of mens rea is required in “all but strict liability offenses.” (People v. Hood, supra,
In Staples v. United States (1994)
In recent jurisprudence, we have construed criminal statutes to include a guilty knowledge requirement even though the statutes did not expressly articulate such a requirement. (See People v. Salas (2006)
People v. Simon (1995)
The Simon court considered a number of factors, including the nature of the conduct criminalized by Corporations Code section 25401 and the
In People v. Coria (1999)
In In re Jorge M. (2000)
In People v. Rubalcava (2000)
In People v. Garcia (2001)
In People v. King (2006)
In light of the evolution of our mens rea jurisprudence, we consider the applicable provisions of section 424. We agree that this venerable statute requires a broader mental state beyond a mere intent to do the act. Section 424(a) 1 makes criminal the appropriation of public funds to oneself or another without authority of law. Section 424(a) 6 proscribes willfully omitting to transfer public funds when the transfer is required by law. Section 424(a) 7 proscribes willfully omitting or refusing to pay over money, under any duty imposed by law, to persons authorized to receive such money.
As the statutory language provides, it is not simply appropriation of public money, or the failure to transfer or disburse public funds, that is criminalized. Criminal liability attaches when those particular actions or omissions are contrary to laws governing the handling of public money. Unlike many
Without a mental state as to legal authorization, a defendant could be convicted of violating the section 424 provisions by simply acting or failing to act, even if he was unaware of the facts, as defined by statute, that made his intent wrongful. Such an interpretation is inconsistent with Vogel, supra,
The plain language of the statute and our own recent jurisprudence compel the conclusion that section 424(a) 1, 6, and 7 must be construed to include a mental element as to the presence or absence of legal authorization or obligation.
Our holding is not inconsistent with Dillon, supra,
As we have noted, Stark and the People disagree as to the nature of the required mental state. Before we address that issue, we clarify what must be “known.” We use the term “knowledge” here for ease of discussion, mindful of the People’s position that criminal negligence is sufficient to satisfy the mental state.
b. What Must Be Known?
In considering what must be known by a defendant in order to prove wrongful intent, the law has long distinguished between ignorance of fact and ignorance of law. The ancient maxim, stated partially in Staples v. United States, supra,
A defendant must know the facts that affect the material nature of his conduct, that is, the facts that must be proven to show his act is the kind of conduct proscribed by the statute. He need not know that his behavior in light of those facts is regulated by a statute. In a prosecution for bigamy, for example, the defendant must know that he is marrying and that he is already married to another. Both those material facts taken together make his action bigamy. They change the nature of his act of marrying from legitimate behavior to illegal conduct. The defendant need not know his conduct is illegal, but he must know the fact (i.e., he is already married) that affects the material nature of his conduct.
A defendant does not have to know that his conduct is a crime. “If the act itself is punishable when knowingly done, it is immaterial that the defendant thought it was lawful.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 36, p. 367.) A defendant may not escape criminal liability by asserting that he did not know the criminal law.
Section 424, however, is an unusual statute, in which the definition of some of the offenses incorporates a legal element derived from other noncriminal legal provisions. Each of the three provisions at issue refers to “law” or “legal duty.” These references are “shorthand,” used to encompass the wide variety of requirements relating to the official’s duties.
The “law” applicable to the acts and omissions in these provisions of section 424 is the authorizing law, which is extraneous to the penal statute. Liability under section 424 arises when the officer or custodian, bound by these authorizing laws, acts without authority (§ 424(a) l)
As we have explained, presence or absence of legal authorization is an essential element of each of the offenses at issue. It also a “fact” about which
The People do not have to prove that the defendant knew chapter and verse of the nonpenal law. It is sufficient that the defendant knew generally that a nonpenal law required or prohibited his conduct. As with any mental state, the People may prove this knowledge by reference to the facts and circumstances of the case.
c. What Is the Required Scienter?
We stated in People v. Salas, supra,
Stark maintains that the prosecution must prove a defendant’s actual knowledge of the legal requirements underlying the section 424(a) 1, 6, and 7 charges. The People argue that it is sufficient for the prosecution to prove that a defendant knew, or was criminally negligent in failing to know, those legal requirements.
As the People note, we determined in Simon, supra, 9 Cal.4th 493, that actual knowledge of the facts or criminal negligence in failing to discover the facts was the appropriate scienter. As we have previously explained, Simon concerned Corporations Code section 25401, which prohibits the sale or purchase of securities by means of misleading statements or omission of material facts. A criminal penalty is imposed for “willfully” violating Corporations Code section 25401. (Corp. Code, § 25540.) After concluding that section 25401 is not a strict liability crime, we construed the statute to require a mental element. We held that a criminal violation of Corporations Code section 25401 requires “either (1) knowledge of the false or misleading nature of a representation or of the materiality of an omission, or (2) criminal negligence in failing to acquire such knowledge.” (Simon, at p. 497, italics
Simon relied on related statutory authority to formulate the mental state required for a criminal violation of Corporations Code section 25401. While similar related statutes do not apply to section 424, Simon remains instructive. It recognizes that, in particular circumstances, actual knowledge or criminal negligence in failing to know material facts is the appropriate scienter.
We agree with the People that those circumstances are present here. Strong public policy supports a rule requiring either actual knowledge or criminal negligence in failing to know the legal requirements underlying the section 424 charges. “Criminal negligence refers to ‘ “a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless.” ’ (People v. Penny (1955)
The Dillon court stated: “The safekeeping of public moneys has, from the first, been safeguarded and hedged in by legislation most strict and severe in its exactitudes. It has continuously been the policy of the law that the custodians of public moneys or funds should hold and keep them inviolate and use or disburse them only in strict compliance with the law.” (Dillon, supra,
Citing authority that included section 424 and Dillon, supra,
Given that “[t]he safekeeping of public moneys has, from the first, been safeguarded and hedged in by legislation most strict and severe in its exactitudes” (Dillon, supra,
A criminal negligence standard protects both the public and the accused. If public officials and others entrusted with control of public funds subjectively believe their actions or omissions are authorized by law, they are protected from criminal liability unless that belief is objectively unreasonable, i.e., is the product of criminal negligence in ascertaining legal obligations. Public officials and others should not be criminally liable for a reasonable, good faith mistake regarding their legal responsibilities. Nor is section 424 intended to criminalize ordinary negligence or good faith errors in judgment.
Section 424 is not limited to public officers. “Because of the essential public interest served by [section 424] it has been construed very broadly.” (People v. Groat (1993)
Stark insists that actual knowledge is required. At oral argument, his counsel asserted that a defendant charged under the statute “cannot willfully act without authority of law if he does not have knowledge of what the law requires him to do.”
In People v. Hagen (1998)
Additionally, as observed in Hagen: “[T]he filing of a California personal income tax return is an act demanded by law of most California residents. By virtue of this and other reporting requirements, millions of Californians are subject to, and must attempt to conform to, a myriad of state laws and regulations (in addition to the many federal laws incorporated into state law). Most taxpayers cannot be expected to have special expertise in the area of tax law, and that many taxpayers, without intending to disobey the law, will occasionally err out of ignorance or a good faith misunderstanding of the law’s requirements is inevitable. California law, like its federal model, provides a graduated scheme of civil penalties and misdemeanor and felony punishment to deter both honest mistakes and willful fraud. . . . [W]e think it likely the Legislature . . . intended to use these graduated penalties to ‘separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.’ ” (Hagen, supra,
However, public policy concerns for the average taxpayer, who is not expected to have a “special expertise” in tax law (Hagen, supra,
By contrast, those charged with control of public funds freely elect to hold their positions of public trust. In this sense, those persons who fall within the purview of section 424 are more comparable to the sellers of securities in Simon, supra, 9 Cal.4th 493, than to taxpayers who do not voluntarily assume that obligation. Although some violations of section 424 may arise under complex public finance laws, as Stark asserts, certainly not all do. But even in complex situations, public officials and others are nevertheless obligated to act “in strict compliance with the law.” (Dillon, supra,
Garcia, supra, 25 Cal.4th 744, likewise does not mandate an element of actual knowledge. We noted in Garcia that the willful failure to register as a sex offender under section 290 involves “a failure to act.” (Garcia, at p. 752.) “The word ‘willfully’ implies a ‘purpose or willingness’ to make the omission. (§ 7.) Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. As stated in People v. Honig (1996)
Finally, Stark opposes a criminal negligence standard because he urges there is a civil remedy against those public officials who make unauthorized expenditures by acting without due care. He relies on Stanson v. Mott, supra,
Stark argues that the conduct underlying the charges here is better resolved in a civil forum. It is not for this court to question the wisdom of the Sutter County District Attorney’s Office in employing section 424 to address Stark’s conduct as county auditor-controller. The Legislature enacted a statute that imposes criminal liability for the acts and omissions it describes. It is for the prosecution to decide whether to bring charges and for a jury to decide if those charges can be proven.
3. Section 424(a) 3
We address separately the mental state required for a violation of section 424(a) 3, which applies to a defendant who “[k]nowingly keeps any false account . . . .” Unlike the provisions of section 424 discussed above, section 424(a) 3 does not mention any “authority of law.” The offense expressly requires that a defendant act “knowingly.” The word “knowingly” is defined in section 7 as follows: “5. The word ‘knowingly’ imports only a
B. Section 424—Instructional Error on Mental State
With regard to the alleged violations of section 424, the grand jury was instructed as follows: “In the crimes charged in the indictment . . . , there must exist a union or a joint operation of act or conduct and general criminal intent. [<J[] General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent, even though he or she may not know that his or her act is unlawful.”
The prosecutor then defined the terms “knowingly” and “willfully” and read section 424 verbatim.
Later, the prosecutor told the grand jury: “What we have here are general intent crimes. You don’t have to intend to break the law. You don’t have to intend to do anything that’s illegal. All you have to do is the act that the law says is a crime. You’ve heard the phrase ignorance of the law is no excuse. That’s what you’re dealing with with a general intent crime, especially misappropriation of public money.”
However, as we have discussed, the section 424 provisions at issue require that the defendant knew or was criminally negligent in failing to know that his actions and omissions were without lawful authority or contrary to legal requirements. The grand jury was not given such an instruction.
The People and Stark disagree as to how Stark may challenge the indictment on the ground of instructional error. Stark, relying on Cummiskey v. Superior Court (1992)
In Cummiskey, supra,
The grand jury in Cummiskey was instructed that an indictment could be returned if all the evidence, taken together, provided sufficient cause to believe that an offense had been committed and that the accused was guilty of it. (Cummiskey; supra,
We rejected Cummiskey’s claim, holding that the standard of proof for returning an indictment under section 939.8 is “ ‘probable cause.’ ” (Cummiskey, supra,
Justice Kennard, in a concurring and dissenting opinion joined by Justice Mosk, described Cummiskey’s claims as challenges to the propriety of legal advice and instructions given to the grand jury and, as such, were not cognizable under section 995 as a basis for setting aside the indictment. (Cummiskey, supra, 3 Cal.4th at pp. 1039-1040 (cone. & dis. opn. of Kennard, J.).) Justice Kennard stated that the only recognized exception to these statutory grounds permits a court to “set aside an indictment on the ground that the proceedings have failed to comport with the demands of the due process clause of the federal or state Constitution.” (Id. at p. 1039.)
Stark argues that the prosecutor’s failure to instruct the grand jury on the required mental element of section 424 is likewise “tantamount to a claim that, as instructed, the jury may have indicted [him] on less than reasonable or probable cause.” (Cummiskey, supra,
The People read our footnote in Cummiskey too narrowly. The role of the grand jury in an indictment proceeding is to “determine whether probable cause exists to accuse a defendant of a particular crime.” (Cummiskey, supra,
We have explained the limited role of the reviewing court with regard to a grand jury indictment: “The duty of determining whether or not an indictment should be found is lodged exclusively in the grand jury and not in the courts.” (Lorenson v. Superior Court, supra,
While the evidence presented to the grand jury need not be sufficient to support a conviction beyond a reasonable doubt, there must be some factual showing as to each element of the crime. Such a showing may be made by circumstantial evidence supportive of reasonable inferences. (See Williams v. Superior Court, supra,
A grand jury need not be instructed with the same degree of precision that is required for instructing the trial jury. (See Cummiskey, supra,
Stark asserts that the prosecutor’s failure to instruct on the knowledge requirement for section 424 “is a misinstruction on the standard of proof . . . which effectively removed the element of mens rea from any independent assessment by grand jurors . . . .” His argument fails because of the particular state of this record. As we shall explain, based on parallel counts of the accusation under Government Code section 3060, the record demonstrates that the grand jury did indeed consider whether Stark acted or failed to act with actual knowledge. Thus, the failure to instruct with the guilty knowledge requirement set out in this opinion was harmless.
The identical conduct that was the basis for the counts of the criminal indictment is also the basis of parallel counts in the accusation. In particular:
(1) Count three of the accusation is based on the same conduct as the third count of the indictment: Stark’s unauthorized transfer of money from the county’s general fund to the Waterworks District. Both counts allege that Stark’s conduct violated section 424(a) 1;
(2) Count six of the accusation is based on the same conduct as the ninth count of the indictment: Stark’s refusal to post the journal entries for the IT department. Both counts allege that Stark’s conduct violated section 424(a) 6;
*408 (3) Counts seven and eight of the accusation are based on the same conduct as the tenth count of the indictment: Stark’s attempt to withhold wages from employees of the IT department. Count eight of the accusation and count ten of the indictment allege that Stark’s conduct was an attempted violation of section 424(a) 7;
(4) Counts eleven and twelve of the accusation are based on the same conduct as the twelfth count of the indictment: Stark’s refusal to pay overtime to the fire department employees in January 2005. Both count twelve of the accusation and count twelve of the indictment allege that Stark’s conduct violated section 424 (a) 7; and
(5) Counts fourteen and fifteen of the accusation are based on the same conduct as the thirteenth count of the indictment: Stark’s withholding of wages for the New Year’s holiday from retiring employees. Both count fifteen of the accusation and count thirteen of the indictment allege that Stark’s conduct violated section 424(a) 7.
Turning first to the counts of the accusation listed above, violations of the Government Code and other laws are alleged, as are the parallel violations of section 424. As before, we will refer to these other laws as “nonpenal laws” to distinguish them from section 424. The district attorney told the grand jury, “All the Government Code statutes that give the auditor the duty to do certain things or the Board to do certain things are contained in the accusation, and then we also included the parallel violations of [penal] law.” Specifically, count three of the accusation alleges that Stark’s transfer of county funds to the Waterworks District violated Government Code sections concerning the authority of the Board to make changes to the adopted budget and to approve appropriations from reserve accounts,
Count six of the accusation alleges that Stark’s failure to post entries for the IT department violated a Government Code section requiring the auditor-controller to issue warrants on claims the Board has ordered paid,
Count seven of the accusation alleges that Stark’s attempt to withhold wages from IT department employees was an attempted violation of Labor Code section 222, and count eight of the accusation alleges that the identical conduct was an attempted violation of section 424(a) 7, which criminalizes the willful failure to pay over money when under a legal duty to do so.
Count fourteen of the accusation alleges that Stark’s withholding of wages to retiring employees for the New Year’s holiday violated Sutter County Rules Governing Employee Compensation, Benefits and Working Conditions section 13.10, concerning holiday pay for terminating employees, and Labor Code section 222, and count fifteen of the accusation alleges that the identical conduct violated section 424(a) 7.
As will be discussed regarding Government Code section 3060, the grand jury was instructed that Stark had to know “the act he . . . was performing or failing to perform was required or prohibited by law,” and “the law may be set forth in a statute, ordinance or other provision of law.” (Italics added.) In returning the counts of the accusation, the grand jury necessarily found sufficient evidence that Stark knew the act he performed or failed to perform was required or prohibited by the nonpenal law specified in those counts. This finding of knowledge extends to the parallel violations of section 424 in the accusation, which rest on the same nonpenal law.
In turn, as listed above, the same violations of section 424 alleged in the accusation are alleged in parallel counts of the indictment. The prosecutor argued to the grand jury that “[t]he evidence will be viewed the same as it supports returning the indictment and the accusation against. Robert Stark.” Thus, as to the parallel violations of section 424 in the indictment, the failure to instruct with the guilty knowledge requirement was harmless.
Finally, there was no instructional error as to count eleven of the indictment, which alleges a violation of section 424(a) 3. As we have explained, section 424(a) 3 requires only that the act be done knowingly. The grand jury here was properly advised: “The word ‘knowingly’ means with knowledge of the existence of the facts in question. HQ Knowledge of the unlawfulness of an act or omission is not required.”
C. Government Code Section 3060—Mental State
In his petition, Stark sought review of the mental state required for willful misconduct under Government Code section 3060. We need not decide that issue to resolve the gravamen of Stark’s challenge to the accusation. Stark’s
1. Background
Government Code section 3060 et seq. provide for a special statutory proceeding authorizing the removal from office of “any officer of a district, county, or city” for “willful or corrupt misconduct in office.” (Gov. Code, § 3060; see 2 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against Governmental Authority, § 109, p. 1201.)
A proceeding under Government Code section 3060 begins with a grand jury’s presentation of an accusation against the official charged with misconduct. (Gov. Code, § 3060.)
“This special statutory proceeding is not a criminal prosecution; i.e., its object is not to convict the defendant of a crime but merely to remove him or her from office, no other punishment being authorized.” (2 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against Governmental Authority, § 109, p. 1201.) A crime committed in a defendant’s official capacity necessarily suffices to establish “willful or corrupt misconduct in office” under Government Code section 3060. (See People v. Hale (1965)
A 13-count accusation remains against Stark. Nine counts are based on the same conduct alleged in the criminal indictment. Four additional counts of the accusation allege the following conduct: in count one, that Stark failed to file the budget on time as required by the Government Code provision and Board resolution;.in counts four and five, that Stark “unilaterally amend[ed]” the 2004-2005 county budget, and “creat[ed] unauthorized reserve accounts” in that budget in violation of Government Code provisions and a Board resolution;
2. Instruction and Argument
The prosecutor instructed the grand jury as follows:
“Misconduct in office includes any knowing and willful malfeasance, misfeasance or nonfeasance.
“Malfeasance is the knowing and willful doing of an act that is unlawful.
“Misfeasance is the knowing and willful failure to perform a duty in the manner that the law requires.
“Nonfeasance is the knowing and willful failure to act when the law requires an act. [f]
“Mere negligence or mistake in judgment in the performance of a public officer’s duty does not constitute willful misconduct in office.
“It must be proved that the public officer knew the act that he or she was performing or failing to perform was required or prohibited by law, and, having said knowledge, willfully failed to act, in whole or in part, in conformity with such law.
*412 “The law may be set forth in a statute, ordinance or other provision of law.
“The Auditor-Controller is a public officer or public official.” (Italics added.)
The grand jury was instructed in great detail on the manner of its deliberations, and the particular Government Code sections and rules applicable to the accusation and indictment. The grand jury was advised that a written set of the instructions would be provided for its deliberations.
There was a distinct break between the legal instructions and the prosecutor’s argument. At the conclusion of the instructions, District Attorney Adams said that he would next argue the significance of the evidence: “You have now heard all of the law and received all the evidence that your decision will be based on. [f] We are going to take a very brief break and then we are going to present our opinion of the case, and it is simply a lawyer’s opinion, [f] I even want to go so far as to caution you at this point that we’re not really speaking as the Grand Jury’s advisors. We are here to present to you what we believe, as attorneys, is the outline of the case and the significance of the evidence to suggest to you what you should do with it. [][] We are advocates, and we are advocates for one side of the case, where the other side will not be heard.” Following argument presented by the deputy district attorney, Adams told the grand jury: “What you do depends on the facts that you have determined through all the testimony and all of the exhibits and on the law that was read to you earlier.” (Italics added.)
The instruction at issue here regarding knowledge of law concerns the nonpenal law that requires or prohibits the act or omission. As we have previously explained, the mental state for a violation of section 424 may be satisfied by actual knowledge or criminal negligence in failing to know the legal requirements governing the charged acts or omissions. In this case, we need not decide the precise contours of the mental state required by Government Code section 3060. Our analysis here is based on the narrow confines of this record. This grand jury was instructed that a public officer must have actual knowledge of the legal requirement or prohibition pertaining to his act. As noted in the analysis of the criminal charges, the grand jury could not have returned the accusation against Stark without determining that he had actual knowledge of the law.
We now turn to Stark’s allegation of juror confusion. Rather than attack the instructions themselves, Stark claims that some of the prosecutor’s comments during argument and accompanying PowerPoint slides “vitiated” that instruction on actual knowledge.
Stark objects first to the italicized sentence in this portion of the prosecutor’s argument: “Misconduct in office involves any willful malfeasance,
Stark does not explain his objection to the italicized phrase, nor do we discern one. The prosecutor merely repeated the standard from Coffey, supra,
Stark next objects to the explanation of malfeasance. The PowerPoint slide defined “malfeasance” as follows: “The commission of an illegal act—an act that ought not be done at all. [f] Includes such acts as amount to a breach of good faith and right action that are impliedly required of all public officers. [f] Example: performing an act in violation of a statute, [f] Does not have to be a violation of a criminal law.” (Italics added.)
Again, Stark does not explain his objection. And again, the italicized sentence does not concern “knowledge” of the law. The sentence describes the nature of the act required. Assuming Stark’s objection is that the sentence is too broad, its scope was narrowed by the example given: violation of a statute.
Stark next objects to the PowerPoint slide entitled “Nonfeasance.” The slide described nonfeasance as follows: “Knowing and willful failure to act when the law requires an act. [][] Neglect of the duties of office, [f] Failure to act where the duty to act is premised on something the official should have known. [1] Something more than oversight or neglect is required to constitute willful misconduct.”
The first two sentences are a correct explanation of nonfeasance: failure to do what the law requires and a failure to perform the duties of office. The third sentence, referring to something the official “should have known” may imply a standard less than actual knowledge. However, the very next sentence points out that mere oversight or neglect is insufficient. Stark concedes this latter statement is correct. Considering the entire statement set out in the slide in light of the clear statement in the instructions that actual knowledge is required, this single sentence used in argument does not raise a legitimate concern that the grand jury was misled as to the mental state required in order to return an accusation, or that it returned the accusation on legally insufficient evidence.
1. Background.
After the grand jury investigation had begun, Stark’s attorney asked District Attorney Adams to declare a conflict of interest. Adams declined. While grand jury proceedings were ongoing, Stark tried to file a motion to disqualify the Sutter County District Attorney’s Office. The filing was disallowed, however, because no action was pending. The grand jury returned its indictment and accusation on May 4, 2005.
In June 2005, Stark moved to disqualify the district attorney’s office from prosecuting the indictment and accusation against him. Relying on section 1424 and due process grounds, Stark argued that as auditor-controller he would continue to make decisions affecting the daily operation of the district attorney’s office; the district attorney’s office is financially impacted by Stark’s alleged misconduct; and District Attorney Adams was personally involved in events that related to the grand jury investigation.
While the motion to disqualify was pending, Stark filed his motion to set aside the indictment and accusation, arguing that the district attorney’s office suffered from an apparent conflict of interest during the grand jury proceedings. Stark incorporated the facts and argument from his disqualification motion, but claimed the standard of People v. Superior Court (Greer) (1977)
Stark’s motion to disqualify the district attorney’s office was heard first and denied. Two months later, the trial court denied Stark’s motion to set aside the indictment and accusation. The trial court, applying the standard in Greer, supra,
2. Analysis
Stark relies on Greer, supra,
Greer involved a motion to disqualify the prosecutor before trial. The Greer court concluded the trial court had the inherent power to disqualify the district attorney in order to ensure that a fair trial would be achieved. In dictum, the Greer court stated: “We do not mean to deny that the same conflict of interest which disqualifies a prosecutor from participating in the trial of a criminal case may not also taint the procedure by which the defendant was charged, if the same district attorney participated therein. [Citations.] Thus, if the trial court determines that a district attorney’s participation in the filing of a criminal complaint or the preliminary hearing on that complaint created a potential for bias or the appearance of a conflict of interest, it may conclude that the defendant was not ‘legally committed’ within the meaning of Penal Code section 995, and the information should be set aside.” (Greer, supra,
Three years after the Greer decision, the Legislature enacted section 1424, “[Responding to an increase in the number of recusals, which the Attorney General attributed in part to Greer’s ‘appearance’ standard . . . .” (People v. Vasquez (2006)
Nevertheless, in People v. Eubanks, supra,
Greer concerned the disqualification of a prosecutor from participating in an upcoming trial. As we have noted, its observations regarding the possible setting aside of an information were dictum. Eubanks concerned disqualifications under section 1424, and its footnote served simply to note the distinction between those motions and motions to set aside accusatory pleadings, without expressing any opinion on the viability of Greer in the latter context. Nevertheless, Stark argues the Greer standard remains applicable to setting aside an indictment. Stark is wrong.
An examination of the Greer footnote does not indicate that it was intended to apply to a motion to set aside an indictment. The Greer footnote addressed only the district attorney’s participation in the filing of a criminal complaint or in a preliminary hearing. The Greer court suggested that an appearance of a conflict of interest at those portions of the proceedings may demonstrate that a defendant was not “legally committed” within the meaning of section 995, subdivision (a)(2)(A), requiring the information to be set aside. (Greer, supra,
Stark complains that it would be “anomalous” to require a defendant charged by indictment to meet a different legal standard than a defendant charged by information. Even as to a motion to set aside an information, however, the Greer dictum is not viable. When the Legislature superseded the
The question here is not whether the defunct Greer standard applies. The question is whether Stark was denied due process. This court has recognized that the manner in which the grand jury proceedings are conducted may result in a denial of a defendant’s due process rights, requiring dismissal of the indictment. (Backus, supra, 23 Cal.3d at pp. 392-393 .)
IH. DISPOSITION
The judgment of the Court of Appeal is affirmed.
Kennard, Acting C. 1, Baxter, J., Werdegar, J., Chin, J., Duffy, J.,
Notes
Further statutory references are to the Penal Code unless otherwise indicated.
“An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.” (§ 889.) Government Code section 3060 et seq.
The grand jury also returned an accusation against assistant auditor Ronda Putnam. The Court of Appeal set aside the accusation against her.
Section 426 defines public moneys as follows: “The phrase ‘public moneys,’ as used in Sections 424 and 425, includes all bonds and evidence of indebtedness, and all moneys belonging to the state, or any city, county, town, district, or public agency therein, and all moneys, bonds, and evidences of indebtedness received or held by state, county, district, city, town, or public agency officers in their official capacity.”
Hereafter, we will refer to the various provisions of section 424 in the following form: section 424(a) 1, section 424(a) 3, etc.
The Sutter County fiscal year runs from July 1 to June 30.
The phrase “subject to review and approval by the County Administrative Officer” was specifically added to the 2004—2005 final budget resolution because, as explained by County Administrator Combs, Stark had made unauthorized changes to the 2003-2004 budget.
On April 11, 2005, the Board filed a petition for writ of mandate compelling Stark to post the IT department journal entries. The writ noted that “despite a direct order of the Board of Supervisors, the Auditor has failed and refused to make the required journal entries to transfer monies into the ISF [(internal service fund)].”
On June 13, 2005, after Stark had been indicted by the grand jury, the superior court granted the writ and ordered Stark to post the journal entries. Stark complied, but advised the Board on
At the Board meeting on March 8, 2005, Stark informed the Board that counsel had advised him to issue registered warrants. At the same meeting, assistant county administrator Coad “clarified that Mr. Stark’s counsel is independent, not from County Counsel.”
As section 424(a) 1 is worded, “[r]ather than prohibiting specifically enumerated behavior, it prohibits any behavior which has not been previously approved by statute or ordinance.” (People v. Battin (1978)
We repeat that a defendant does not have to know that his conduct is a crime. He must know the facts that affect the material nature of his conduct.
Additionally, as noted, we held in In re Jorge M., supra,
The term “willfully” is used in section 424(a) 6 and 7, not in section 424(a) 1.
Section 939.8 provides: “The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.”
Additionally, Cummiskey claimed the prosecutor, by instructing the grand jury that it “ ‘should only consider the evidence presented,’ ” and by refusing to answer certain evidentiary questions, misled it regarding the exercise of its independent investigative authority under section 939.7. (Cummiskey, supra,
Accordingly, we disapprove of People v. Gordon, supra,
Government Code sections 29088 and 29130.
Government Code section 29803.
In view of our conclusion that the required mental state for these section 424 provisions is actual knowledge or criminal negligence, the grand jury instruction was more generous to Stark than required.
The People argue that Government Code section 3066 does not provide a basis for challenging an accusation based on an allegedly erroneous grand jury instruction. The statute allows an official who is the subject of the accusation to object to its “legal sufficiency.”
We need not resolve that question here because, even assuming the statute permits a challenge for instructional error, Stark’s argument is without merit.
Government Code section 3060 provides in relevant part: “An accusation in writing against any officer of a ... . county, ... for willful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer accused is elected or appointed. An accusation may not be presented without the concurrence of at least 12 grand jurors, or at least eight grand jurors in a county in which the required number of members of the grand jury is 11.”
Counts four and five of the accusation were parallel to particular counts in the indictment. However, those counts of the indictment were dismissed by the Court of Appeal because the alleged acts by Stark did not constitute “use” within the meaning of section 424(a) 2, which applies to one who “[l]oans [public money] or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law.”
As pointed out, we need not and do not decide here what mental state is required to establish willful misconduct under Government Code section 3060.
The phrase “legally committed” is contained in section 995, subdivision (a)(2)(A), which requires that an information be set aside if the defendant was not “legally committed.” “ ‘ “The phrase ‘legally committed,’ . . . refers to the examination of the case and the holding of the defendant to answer (Jennings v. Superior Court (1967)
Section 995, subdivision (a)(1)(A) provides the indictment shall be set aside if it “is not found, endorsed, and presented as prescribed in this code,” i.e., “part 2, title 5, chapter 1, of the Penal Code beginning with section 940.” (People v. Jefferson (1956)
Stark observes that the Greer footnote, in making a general observation that a conflict of interest may taint the charging procedure, cites Corbin v. Broadman (1967)
The parties disagree on the means by which a defendant may challenge an indictment under Penal Code section 995 and an accusation under Government Code section 3060 on the basis of a district attorney’s conflict of interest. Stark argues that his claims are properly raised under those statutes, although he does not clearly explain how. The People argue that Stark is limited to making a nonstatutory due process motion. We need not resolve these questions here. Stark has failed to establish his entitlement to relief on any basis.
As we have noted, Stark’s disqualification motion was denied by the trial court, and the record does not indicate he sought relief from that ruling by pretrial petition. (See Vasquez, supra,
Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.
Associate Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
Here, the court holds, among other things, that an indictment may be set aside under Penal Code section 995 on the ground that the grand jury was wrongly instmcted on the mental state required for an