*1 F008848. Fifth Dist. [No. 1988.] July WEBB, Petitioner, E. v.
BENNY COUNTY, Respondent; OF TULARE THE SUPERIOR COURT PEOPLE, Party Real in Interest. THE
Counsel
James Heusdens for Petitioner.
No appearance Respondent. Sevier, Reed, F. Melinda Attorney,
Gerald District M. District Deputy General, White, K. Attorney, John Van de Chief Kamp, Attorney Steve General, Attorney Assistant James T. L. McNally Raymond II, Attorneys, Brosterhous District in Deputy Party for Real Interest. Opinion
HAMLIN, Acting Benny E. Webb seeks a (petitioner) P. J.Petitioner writ of the Tulare prohibition prevent County Court from Superior conducting further criminal him in action proceedings against No. 24994. In that action is charged eight counts of misappropriation 424, funds in l.1 public violation of Penal Code section subdivision Petition er contends the trial judge erroneously denied his section 995 motion to set aside the information him. against statutory Further references are to the Penal Code otherwise indicated. unless court to show respondent superior issued an requiring
This court order and staying should not be why granted the relief sought cause this court. order of of this further petition trial pending determination cause to commit that no reasonable or probable Petitioner there was urges in all counts with charged misappropri- him on the information in that is 1, a statute money in violation of section subdivision ation of public transfer, safekeeping, with the charged receipt, officials applies Petitioner also asserts moneys, which is not. or disbursement failing transcripts read all the court erred respondent superior so as to jury proceedings promised and the preliminary hearing grand on his motion and testimony ruling to consider all therein before be able We the court. find its before it with the clerk of filing publicizing ruling for writ of deny and will his petition contentions unmeritorious petitioner’s prohibition. Facts a supervi- filed he was against
At the time information was petitioner, Fifth District of Tulare Morton Supervisorial (County). sor for the is within 1984 the (City) Avenue Porterville that district. 300 feet of Morton from York about east of south side Avenue Street to *5 many of Walch Street was with curbs and the gutters, unimproved flooding. residents with This area on Morton Avenue experienced problems in there so that some of City County is one which are both properties, City the Morton Avenue was in the and the remainder property fronting on County. inwas the Avenue property some the Morton petitioner approached if they willing to see be to the front several feet their give
owners would exchange in for curbs and installed on the widened property gutters being boundary of In February southern Morton Avenue. landowners Alice to have Taylor Jacqueline agreed Griffin contracts the signed from the her property installed. The check was improvements Griffin. Taylor by to a check from to given petitioner; City given the They endorsed the checks in and returned them to him petitioner’s presence Petitioner the checks over agreed. Rodriguez, turned to Manuel cement contractor who installed the curbs and for both gutters properties. The checks were that far the costs of those improve- amounts exceeded Taylor ments to and Griffin. properties year, Later in the five other to property agreed owners the front several give exchange feet of their installation properties of curbs and gutters. City depart- Petitioner then went to the works ment staff and at least members of to see if city they one of the council in- and gutters have curbs his to plan along willing go be would consider- Avenue under Morton stretch of of the the remainder stalled on $23,250 to com- allocate would was that Petitioner’s plan ation. improvement Avenue the Morton within of the improvements all plete City’s drawn on the that checks would plan Part of the project. checks that those owners and the five property treasury payable made owned in front of the property gutters curbs and pay would for all of the property curbs and gutters but for named individuals by those improvement project. the Morton Avenue within five property city acquisition council approved The warrants, ostensi- disbursement of the and authorized the owners property conveyed by the being private interest in property for the fee bly payment then delivered to City. petitioner, The checks were owners to property them, instructed owners and property delivered them to the individual who hand them the checks and to their to endorse according prior agreement, occasion, on each say, transaction. That is to back to him in the same owner, handed the check to the property took the petitioner personally while the check was signature, owner for waited check to owner. immediately took back the check from signed, and them in who Rodriguez, deposited checks were then taken all along to install the curbs and gutters his bank account and proceeded All Avenue improvement project. proper- within the Morton properties as the cost of the value of their was the same ty owners believed one intended that amount to their and no improvements property, anybody him or her else’s improve property. be used payable *6 information), of count VIII of the (the subject petition- another matter his, Ruddock, Union Peter to from purchase er a friend of prevailed upon the northeast corner (Union) Oil a of located at Company parcel property Street, Vandalia, 680 South Main of Main Street and described as generally thereafter, Porterville, $45,000. was Immediately parcel purchased for the The lot comprising to directions. petitioner’s into two lots split pursuant $50,000 by for the was then original purchased three-fourths of parcel Part of at County (Board) petitioner’s request. Tulare Board of Supervisors Ennis, $5,000 a estate as a commis- agent, the additional went to Ben real Gleaners, to Senior a senior he did not claim and which he donated sion the engineer- that it be used to organization, stipulation pay citizen At to the lot necessary accomplish split. petition- firm that did the work ing direction, Youth the second gave Incorporated er’s Ruddock to Porterville was original split. lot into which parcel I) Property Taylor
1. (Count Testimony Taylor
A. Alice of the instal- her Taylor approached regarding Alice testified that a her for gutters exchange strip curbs and in front of house lation of Rodriguez Manuel signed from her She contract with frontage property. also deed signed but did recall the contract. She reading for the work and gave for the of her warrant in payment strip that funds from her did not tell her petitioner; the check back to other she improvements would be used to for pay warrant Rodriguez shows Taylor’s to such a deal. Alice contract with agreed never $1,458. curbs was The cost of the of her and gutters that the installation $3,240. amount of was signed check she returned Testimony County B. Staff Wilson, County, director for petitioner’s works
Doug of a funding took an item to the Board to authorize the construc- request, The at the of Rose Lane and Morton Avenue. Board tion corner project $6,000 for that work. The approximately authorized purpose costs in the and some acquisition rights-of-way involved pay road, the rights-of- on the Rose Lane. Wilson testified that cleanup private Taylor, to be from Griffin and of the southeast way purchased were owners Actually, it southwest corners Rose Lane and Avenue. Morton paid Griffin’s improvements property. had passed Wilson testified the normal after the Board procedure negotiate item would to have an done and to with the agenda appraisal complete, owners Once acquisition. negotiations County staff would Board for of the right-of-way return acceptance deeds and authorization for bid payment. typically go would the installation of that he was gutters. curbs and Wilson testified any appraisals aware of done on on Morton Avenue. being properties Rodriguez gutter Wilson further testified that Manuel did the curb and *7 on Morton and that the County pave-out work the Avenue the did project after the curbs installed. was to reimburse gutters Rodriguez work were limits County pave-out city for the work that was done within the but County for which the the entire amount. At the time of the paid prelimi- nary yet County in had not hearing Rodriguez paid pave- out work. intersection of on the the construction following also testified that
Wilson Avenue, regarding him again contacted Rose Lane Morton Avenue, he (Wil- but that rest of Morton on the project completion sharing revenue to recommend that “necessarily” prepared was not son) project Avenue improvement the Morton money complete be used County for the project. funds budgeted that there were no road authorization but the Board Taylor deed from got petitioner, Wilson only an easement. Taylor gave a fee interest and called for II, III, IV, V, (Counts 2. Remainder of Morton Avenue VI, AND VII) Testimony City
A. Officials Tree, mayor Council and the City Steve member of the Porterville 1984, testified that he had a conversation curbs petitioner regarding on Morton Avenue. Petitioner him that owners gutters property told They to deed the for the cost dis- willing property improvements. City already cussed the with the purchasing improvements it. Tree remembered some discussions “How are we regarding, going decide gets paid which owner what?” since “it would be one lump cross-examination, On Tree testified that the was project.” payment plan that the checks would given pay for the entire Morton Avenue but on redirect he testified that he was not aware that improvement project, would be used for other than the five because did properties many not know properties how were on the street. He did understand that the checks would cut for individual owners and it would all be back coming for the improvements.
Gene Klatt City testified that 1983 and 1984 he was employed as an engineer. contacted him regarding possibility the City and the some doing joint work on the Morton Avenue drainage Klatt testified that the south of Morton Avenue problem. side in the largely County. why When asked would become involved in on the improvements County’s he said: property, portion “[T]hat island, county essentially a county city fell within or within jurisdiction, city’s of influence. . . . sphere “Morton is also a ... designated through city. east-west arterial So likelihood, that in all eventually most of that area be annexed would . . . city. into
“So that city of Morton Avenue would benefit the because it completion area, arterial; served primarily city major traffic and around the it was a *8 residents, been for they asking had benefit the because and would be improved.” the street to in Avenue improvement the involvement the Morton discussing City’s Klatt said:
project, about, discussed that if the “I don’t recall how the number came but we work, of bonding because city engage perform contractors forth, tend to prices and so our contract insurance requirements, payments, city That if the contribute monies than contract. would higher private construction, owners, acting it an property through this was felt that contractor, city the work a lesser cost than the could hire secure at agent, could. city manag- with both Mr. Webb and subsequent
“And discussions contribute, er, I city twenty- would believe was it was arrived that the [by five an agenda prepared four thousand hundred. And item was Klatt] the costs basis of the justifying improve- that monies and on the describing and land value.” ments council, city knowledge,
Klatt testified of his later that the best by forth that for a petitioner payment aware that a had been proposal put $23,250, share, side of Avenue would be im- City’s the south Morton existing County either fee and the would have title or use proved, roadway. easement title for that Huifaker was the 1984. He met city manager
Charles testified that he 21, 1984, his June attorney to discuss curbs with city Street; on Morton he discussed with all five of council gutters for the improve- members 1984 the idea of expending City’s within he was which County; plan ment of not aware $23,250 would be other than to anything compensate used improvement per agenda owners for their item. contractor, met that he was a that he Rodriguez
Manuel testified to discuss Avenue that petitioner the Morton improvements, City, from the him petitioner paid obtained encroachment permits him the checks endorsed the landowners and told whom pay. him bunch gave checks], indicated that “a whole Rodriguez [of $13,240 in Taylor’s ten of them.” March and about He received check $4,000 the others in still owed the about August. Rodriguez in 1984 on Street project. work was done the Morton pave-out *9 Testimony Landowners B. contacted him with that petitioner Webb testified (count III)
Chois the understanding for and gutters curbs exchange proposal deeds to extra; brought later have some petitioner that he to pay would Webb, petitioner his Webb further testified that them in home. signed who petitioner. When gave and back signed him a check which brought answered, check, signed “I Chois Webb the back of the why signed asked it it was signed five dollars. I because I it hundred thought it because was contrary We want to be gutters. and didn’t curbs along group with the go that we’re I wanted community neighbors. interested also in curbs and we it because we were Morton. And signed $5,719.50. Webb that he actually Chois testified The check was for gutters.” at amount. did not look Webb, Webb, testified that she the deed signed
Vivian wife of Chois same and belief as signed and that she the check under the circumstances her husband. account,
Edythe II), lady, Keck is her “an old (count Green who own years good almost who not claim to be “so eighty thinking old” does anymore,” idea of curbs and approached petitioner having was her cedar trees in gutters installed. concern was with the Apparently $3,464 She yard. gave her front testified that she the check for and it signed back to petitioner. her,
Bess her IV) telling Ball testified that had contacted (count petitioner $500. she and testified that get gutters petitioner could curbs She $4,650, brought signed gave her the check for that she it and it back to him. She less understood and transaction than some of the others plan City since she believed she had donated her to the and could not why they understand her a check she had to back to giving give She told her. petitioner. just stealing was like from her VI) Grilfin testified that contacted re- Jacqueline (count of curbs and a contract for the garding gutters; signed installation she her installation of the curbs and the check from gutters; petitioner brought said, it”; “This will cover she the warrant and returned signed it to him. She did not intend to else’s curbs and pay anybody gutters street; there was no deal for her warrant to cover rest of she believed gave straight she tradeoff for the Griffin’s improvements. her contract with shows that the cost of the installation of curbs Rodriguez $1,538. gutters The warrant she signed returned $3,999. was in the amount of
Ruth Cook Alley testified that her on several occa- petitioner approached sions but she persisted him that she did not curbs and telling want *10 ahead, Finally, after gutters. several visits she agreed go petitioner assured her it was not to cost her She going money. testified that she signed a of easement grant money which was later recorded but received no and none. paid LeDuc,
Vee another owner of within the im- property Morton Avenue provement testified project, much the same as Ruth Alley. Cook
Elven Atkinson testified that Manuel Rodriguez first contacted him and then he spoke to petitioner regarding the curbs and gutters. Atkinson indi- tradeoff, is, cated that he and petitioner discussed of a possibility that trading right-of-way for curbs gutters, but that him petitioner told the County really did not have and that if he wanted curbs and he gutters would have to pay for them. He that testified the deed “for the recorded, he right-of-way” executed had not been delivered or but he paid $500 to Rodriguez for the curb gutter work.
Judith Bowles Treadwell (count V) testified that she is employed inCity the engineering and building division. Petitioner contacted her to see know, “if we’d be interested in you know, dedicating, you or moving, giving some of our land in for curbs exchange and gutters.”
She testified that she signed a deed of easement her kitchen in petition- er’s presence delivered it to him. There was no discussion between her and petitioner regarding payment any money for her but she property, $5,417.25 received a check for from petitioner and endorsed and returned it him. 3. Main Property (Count VIII) Street Ennis, broker,
Ben a real estate testified that Peter Ruddock bought property 6, located at 680 South Main offer dated August 1985. The $45,000, purchase price and Ennis received a real estate commission for producing Ruddock as the buyer. Gibson,
Randall Oil, real estate manager for Union the seller of the Ruddock, testified that he had a conversation with regarding located at 680 South Main and told petitioner on 6, 1985, August that Union would be to entertain happy condemnation or a letter of proceedings intent time, regarding condemnation. At that petitioner said he did not think he could do that in a timely fashion. Peti- tioner drove to Los Angeles day the next (Aug. 1985) to deliver Rud- assumed Gibson to Gibson. gave personally Union Oil and offer to dock’s County official. as a acting at 680 located the purchased Ruddock testified Peter buy him to asked him and contacted after South Main Street folks County, for “old a favor for doing Ruddock felt was property. that he was testified Ruddock organization.” youth . . . kind of a some had suggest- that petitioner the deal and making profit interested costs that his escrow he understood testified that He also ed the lot split. $5,000 County. to the on the sale to be received the extra come out of would *11 Title in Porter- American Hildreth, for First manager the office Vicky to the Ruddock sale ville, the escrow on the opened that petitioner testified but that Youth Incorporated to Porterville County conveyance and the petitioner supplied She also testified that no documents. signed petitioner descriptions. the property R. L. Schaffer engineer employed he is a civil
Don Monk testified that Main Street survey a of the South In 1985 he performed and Associates. descrip- and drew survey up legal with petitioner He discussed property. Main Street property into which the South tions for the two parcels split. Kuhn, County, testified services for
Lloyd building the director located at 680 South him to look at the requested property that petitioner Petitioner accessibility handicapped. its for Main Street determine off a of the surveyors portion to break going further told Kuhn that an item be included on lot. Kuhn testified that asked County purchase a of intent that the would Board’s notice agenda regarding $50,000. got Main Street for Kuhn located at 680 South property Valentine, a Shirley from of the legal description property question County technician. property Gould, 1 that he knew County District testified
Clyde Supervisor, Tulare Main Street County property the South purchased of the lot before the split $45,000 just had been property purchased but that did know He testified he still of it. County three-quarters and the purchasing have voted in favor of 'it if he had known. would 2 and respec- for districts Conway Mangine, supervisors John and Lori they if they acquisition not have voted in favor of tively, testified would been involvement. petitioner’s had aware have testified that he would not
Leroy Swiney, the district supervisor, involve- if he known of petitioner’s in favor of the had acquisition voted ment, since he believed that the County got originally less than property thought. Valentine,
Shirley technician employed County, tes- tified that told her he had buy Ruddock keep County because the could not get quickly enough. Kuhn, Lloyd her knew about the supervisor, lot and advised her that split they could not until complete purchase the lot was split. rebuttal,
On Lloyd Kuhn testified that he found out the details after the closed, escrow had that he knew the lot split had to be before accomplished close, escrow could but never knew the before the price $45,000. split had been Shirley Valentine testified that Kuhn had told her $45,000. the price had been
Reba Quiram, Gleaners, the treasurer of the Senior testified that she $4,351.39 received check for Realty from Ennis and that deliv- bills, ered the check to her with instructions to certain pay that of including *12 Associates, R.L. Schaffer and the company that did the survey engi- neering work for the lot split.
Thomas Logan testified that he was the auditor for and that he had a travel claim from petitioner for 372 miles on 7 for a August trip Los Angeles. Counsel stipulated that petitioner had submitted an expense voucher for lunch on that day $4.80. same in the amount of
Discussion I. Standard Review An information should not be set aside or prosecution thereon pro hibited if there is some rational ground for assuming the possibility an offense has been committed and the accused is guilty of it. v. (People Slaughter 629, 35 (1984) 448, Cal.3d 637 677 Cal.Rptr. P.2d 854].) [200 Evidence that justify will a commitment need not be sufficient to a support (Caughlin conviction. v. Superior 461, Court 4 (1971) Cal.3d 464 [93 587, 481 Cal.Rptr. P.2d 211].) So long as there is some evidence in support information, of an court reviewing will not into its inquire sufficiency. “Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.” (Rideout v. Court Superior (1967) 67 471, 581, Cal.2d 474 Cal.Rptr. 432 P.2d 197].) [62
885 to ‘reasonable equivalent is generally cause’ “The term ‘sufficient a man of lead cause,’ is, facts as would a state of such and probable entertain conscientiously to believe or ordinary prudence caution 9 (1973) v. Uhlemann (People of the accused.” of the guilt strong suspicion 657, the issue On 609].) appeal, 511 P.2d 662, 667 Cal.Rptr. Cal.3d [108 review of questions scrutiny appropriate the “independent must receive reviewing 638.) at p. 35 Cal.3d Slaughter, v. supra, (People of law.” the defendant held who magistrate whether must decide court v. (Rideout it did. the conclusion reasonably have reached could answer Court, 474.) at p. 67 Cal.2d supra, Superior
II. 424, Section Subdivision Challenge Applicability of on misappropriation were based charges against petitioner All the 424, 1, which provides: of section subdivision violation public town, state, of this or district any county, city, or of “Each officer of this transfer, state, safekeeping, with the every person charged receipt, other authority 1. Without moneys, who either: or disbursement [1f] use, thereof, law, same, or to the to his own any portion appropriates in the state another; by imprisonment . . . . . . Is punishable use of [U] [U] two, holding from years, disqualified three or four and is prison office in this state.” used moneys’ “The ‘public
Prior to section provided: phrase all bonds and *13 425], 424 and includes in the two sections preceding [§§ state, indebtedness, city, any to the or moneys belonging evidence of and all therein, bonds, town, district, moneys, all or county, public agency state, district, county, city, by of indebtedness received or held evidences town, officers their official agency capacity.” or public determine, then, preliminary if the evidence adduced at the
We must to believe that petitioner reasonable and cause hearing probable shows 424, such by noting subdivision 1. We begin violated section crime. Cal. 1 (1926) v. Dillon 199 (People violation is not a intent specific 424; 1, an require proof P. Thus section subdivision does 230].) [248 of an act doing rather the intentional to steal or but misappropriate, intent 7.) (Dillon, p. in the misappropriation. supra, that results facts, voluminous and convoluted As can be seen a review of the through and outside the irregular actions and activities were highly petitioner’s is, The question, though, officials. employed public usual procedures hearing, of the evidence at the presented preliminary based review upon 886 assume not magistrate ground
whether there was some rational of section had occurred but that a violation only that some violation of law 424, 1, had committed viola- subdivision had occurred tion. 424, a violation of section subdi- obviously
This is not the case of typical em- 1. That often used in situations where a public vision section is more official, receives in the course and of his or her ployee scope employment, her use rather than money money turning and converts the to his or own v. Best 172 entity. (See, (1959) over to the public example, People money 692 P.2d officer who Cal.App.2d accepted police 314] [bail [342 money never over v. 170 city]; (1959) Cal.App.2d turned People Griffin 358 bail money P.2d court clerk but [deputy municipal accepted [338 949] failed to deliver it to Another scenario is court].) employ- where typical moneys ee his or her official access to capacity, having public having authority moneys to disburse the for certain embezzles public purposes, to his or her own v. Little 41 purpose. (See People (1940) [city having city 797 P.2d access to funds Cal.App.2d employee [107 634] them].) embezzled which he seeks to set aside do not involve charges against petitioner
acts that fit either of the
scenarios. What
did that
typical
provides
I
charges
basis for the
counts
VII was use his
as a
through
position
member of the Board and the trust and
carries with it
respect
position
a scheme for the
implement
improvement Morton Avenue that he
and, indeed,
would not have
ordinary
been able to
accomplish through
legal
Testimony
County
channels.
was adduced that
money was
avail-
able for the
and that
improvement project
accounted for
scheme
petitioner’s
get money
City
from the
even
though
being
improved
County.
to the benefit of both the
and the
635,
731,
v. Battin
77
People
(1978) Cal.App.3d
95
Cal.Rptr.
[143
248],
A.L.R.3d
cert. den. Battin v.
887 Thus, official, county for a public particularly supervisor, 424, necessary custody violate section it is not that he or she have actual of moneys. directly, job The fact that in his public or the common of his description responsibilities position, charged funds transfer or disbursement of does nec receipt, safekeeping, public essarily 424. It if preclude under section is sufficient prosecution official controls funds so as to cause their public public expenditure Lee, Qui v. Mei 48 nonpublic purposes. at (People supra, Cal.App.3d 523.) p.
III. Counts II Through VII Based on Misappropriation City Funds of out,
As II petitioner points counts VII of the through information allege misappropriation City of warrants issued to various individual owners of within the confines of the Morton Avenue improvement official, Since project. City these are funds and City is not a petitioner contends he cannot be charged with them. misappropriating Ad ditionally, petitioner that after each of urges the warrants for payment City funds was delivered to the Morton Avenue property-owner/payee, longer no represented moneys. All of these are based on arguments 424, 1, language section subdivision and related sections without citation authority. v. Wall People (1980) Cal.App.3d 522], the Cal.Rptr. [170
defendant meter parking collector contended the evidence was not sufficient his conviction support of unauthorized appropriation his own use of 424, public moneys. (§ subd. The court 1.) held that “section subdivi sion 1 and section 425 were intended to punish those with the charged and transfer receipt moneys belonging to the state or a subdivision there of and who such misappropriate moneys when there is a nexus between the moneys they are charged with and the moneys misappropriated.” (Wall, supra, p. 22.) It then concluded that the nexus required existed case even though defendant was not acting his official capacity when emptied meter. The parking defendant was with the charged receipt and transfer of the meter parking moneys that he misappropriated, “using very instrumentalities of his occupation gain possession thereof.” (Ibid.)
In this case petitioner received the City warrants in his capacity as a supervisor, delivered the warrants to the various property owners officials, pursuant to arrangements and the property owners en- *15 dorsed the warrants and returned them to in petitioner his as a capacity in that he made them to
county supervisor arrangements pursuant those warrants exercised control over endorsed Petitioner then his capacity. entirety in Avenue their without to for the Morton pay improvements than his or more paying to whether a owner regard particular property and with- knowledge her or consent her share without his or proportionate County purposes used for regard being out whether funds were City City used being purposes. or funds were circumstances, he cannot petitioner’s argument
Under these moneys he was City’s because guilty public misappropriation transfer or disbursement safekeeping, person charged receipt, gained is not The fact City’s moneys of the is persuasive. petitioner City’s control of in his as a public moneys capacity supervisor Here, preliminary hearing in the same exercised that control capacity. the dominant instigator deinonstrates that was the transcript City whereby moneys in the to the figure belonging misappropri- were plan ated. of the the individual owners Endorsement warrants of the war- ^delivery immediate did not affect character one of the public moneys. authorizing rants as No involved the issuance or had that the delivery any warrants their intention warrants were their There is no testi- compensate property. the individual landowners for in the amount mony record that owners considered the Each money. to him her as his or her payable pursuant to the warrant or she was her strip owner understood he his or exchanging for the Morton Street to the The owners improvements property exchanged. make served as conduits to funds available to the contractor payment installing improvements.
We evidence at the as preliminary hearing conclude that the introduced to counts II VII reasonable and cause to through established probable believe the the Morton received improvements funds for Avenue to a capacity county supervisor pursuant plan his official as worked out in official funds. capacity misappropriate his those public moneys Thus there in his required exists the nexus between he received Wall, capacity moneys misappropriated. (People supra, official v. Cal.App.3d p.22.) IV. Street, County's Count VIII—The 680 Main Porterville Purchase of duty Petitioner had no to reveal the other members urges its underlying Board the unusual circumstances of one of purchase parcels unimproved into which the lot referred to 680 South Main *16 not Additionally, contends did had been split. Street Porterville facts about any property from the Board information conceal its underlying acquisition. that hearing reveal facts at the magistrate preliminary
The before the Ruddock, his, Peter to purchase a friend prevailed upon petitioner $45,000, listed Some price. from Union for South Main Street property from Rud- the Board to days purchase later prevailed upon six petitioner $50,000 into which the South Main Street dock for one of the two parcels At of the Board believed it was majority had been least a split. property as 680 commonly known South the entire parcel property purchasing Street, fact, three- property purchased represented Main Porterville. of the gave remaining one-quarter of that Ruddock quarters property. at to Youth direction. Incorporated petitioner’s Porterville direction, $5,000 at Ruddock used the difference be- petitioner’s Also the County his cost entire he received from parcel price tween of the Realty escrow and to pay for to costs Ennis three-quarters parcel pay $4,351.91 However, County. to the Ennis a commission of the sale in the Realty County was not involved sale to the and did request Realty commission on that sale. Ennis donated to Senior Gleaners the County. amount it received from the of the sale to the Petitioner proceeds $4,351.91 check Realty’s delivered Ennis for with instructions that Senior use to R. L. Associates pay Gleaners Schaffer and for proceeds survey by work for the lot That was directed engineering split. split lot way County. and it no benefited the petitioner, We look to plan causing County acquire for petitioner’s portion the South determine there is any Main Street whether ratio- for his ground assuming County nal exercised control over funds petitioner by for not authorized offered at the purpose law. evidence prelimi- nary hearing demonstrated that knew that the he asked petitioner $45,000 purchased the Board to from Ruddock could be purchase plus $50,000 ask of sale. When caused Ruddock to expenses $4,351.91 an control as additional could a com- produce earned, Realty neither nor requested expected mission Ennis $4,351.91 Realty, subject petition- Ennis extra funds were and, those for a er’s control in his he used funds capacity supervisor, law. authorized purpose hearing
We conclude that the evidence presented preliminary VIII cause for the provided probable mag- of count reasonable support County funds to his personal istrate to believe had controlled 1. and to the benefit of others in violation of section subdivision benefit *17 V. Testimony All the Included Alleged Failure Trial Court to Consider in the Transcripts of argument Petitioner that the trial said at the conclusion judge asserts read the motion that over the weekend he would on section 995 petitioner’s the in 11 and all volumes) preliminary hearing transcript (2,021 pages entire volumes, 867 on indictment jury proceedings (6 the transcripts grand to the on the press ruling Then the trial made and released his judge pages). Court on County and filed the in Tulare following Monday ruling Superior that that it Tuesday. nearly Petitioner is argues improbable impossible testimony read all of over one weekend. the court could have that the out that argument pointing We our consideration this begin that failed to read record does not contention the court petitioner’s support In the absence of evidence of that contention transcripts. support length preclud than counsel’s assertion that the of the record other defense weekend, the time over the we reach ed such a review within available on our and the contrary transcripts conclusion based examination Code, has duty regularly performed (Evid. that official been presumption here, as court ne 664). showing, an affirmative that the Absent § on duty transcript glected perform preliminary hearing its read submitted, is not v. (People the case such a rebutted. presumption which is 242 Cal.App.2d 679].) Chamberlin (1966) Cal.Rptr. [51 even if that the trial But this court were assertion accept petitioner’s we agreed, persuaded court failed read all would not transcripts on information reasonable or was committed without 999a.) cause. probable (§
VI. Trial Court Alleged “Improprieties” by acted after the argues Petitioner also trial court improperly conclusion of on motion to set aside the information arguments his filing decision news media advance of releasing this case its to the argu- with Tulare Clerk. As with most of petitioner’s decision his relief based authority ments on he cites no appeal, support request if we contention at complains. Even this accept conduct of which value, conclusion have reached that full face it does not detract from the we cause for record reasonable and preliminary hearing provides probable on file in case. commitment on information this petitioner’s order and dissolve the a writ of deny prohibition We petition trial. staying petitioner’s J., A.), concurred. (W.
Stone as to J., majority ARDAIZ, Dissenting. I concur Concurring funds I charges misappropriation count which *18 majority not sepa transaction. Because the does arising Taylor out count, briefly this I set the relevant facts. rately address forth Wilson, County (Coun- of Tulare works director for the Doug public author- County (Board) that Tulare Board of Supervisors testified ty), $6,000 of Lane and to fund a construction at the comer Rose project ized and right-of-way a money Avenue. The was authorized to acquire Morton on Rose Lane. Wilson work to be done expenses cleanup to involved pay to made no mention of an agenda testified that the item the Board presented The to be gutters. rights-of-way for installation of curbs expenditure Griffin authorized Taylor. County subsequently from and purchased Thus, and not only Taylor’s right-of-way. Griffin’s purchase Taylor check to from the and the check petitioner delivered was (City). delivered to Griffin was from the of Tulare Taylor that an easement across represented Petitioner to both and Griffin for of the curbs and exchanged their would be the installation fact, county Taylor check and returned to gutters. signed petitioner Taylor Griffin improvement. exceeded the cost of the Both greatly be testified never told them that funds from their checks would petitioner deal. they agree used to other nor did ever such a improve Taylor. After the checks Petitioner delivered the checks Griffin and turned had been endorsed and returned to them over petitioner, the curbs Rodriguez, gutters Manuel the contractor who installed Avenue. Morton
Based on the the evidence sufficient conclude that foregoing, 424), violated Penal Code section 424 section subdivision petitioner (herein 1, notes, I. majority correctly charged as to count As the funds in as a responsibility county his capacity supervisor. The evidence indicates that the Board presented preliminary hearing rights-of- authorized to be used for and for cleanup purchase funds curbs Avenue. way, gutters along installation of Morton interest, Moreover, a although the Board authorization called for fee Taylor. received an from Petitioner caused funds to be easement gutters, for installation of curbs and authorized purpose used Moreover, concluded, correctly the endorsement majority Board. as the Taylor did not convert redelivery immediate of the warrant to from funds. public private VII, I cannot through I concur in the result as to counts II Although analysis. majority opinion, Under the majority’s subscribe to 1, 424, he was is under subdivision because apparently chargeable section majority opinion who funds. The public public official misappropriated any funds gains concludes that time a official control public public funds, he based on a as to the those misrepresentation proposed purpose 1. The can be section subdivision weakness charged violating statutory requirement this is it fails to consider position those or “other with” “charged responsibility official person” funds. *19 522], v. 114 15 on which
People (1980) Cal.Rptr. Wall Cal.App.3d [170 relies, the the the not its there duties of majority support does conclusion: the position defendant in his as a included public employee responsibility the that subsequently for funds were misappropriated. Wall, the and of San City the defendant was employed day, At the of each work beginning
Francisco as a meter collector. parking to the collector. necessary assigned the to collect the coins was equipment day moneys At the the returned the (5 end of each collector working p.m.) with the along equipment. collected
The in a between the hours police defendant Wall was observed officer At that and 6:15 from meters on Sutter Street. p.m. collecting money time, He assigned the defendant to collect Sutter Street. was 424, 1, 504, 425. subdivision and violating convicted sections 424 was
On the defendant in relevant that section argued part appeal, moneys “if misap because the section inapplicable applied in the ‘official came into the of the ‘officer’ officer’s propriated possession (Id. argued at The that because he was capacity’.” p. 20.) defendant money, he not be acting in his official when he collected the could capacity 424. (Ibid.) convicted under section
The there was no rejected argument concluding require court this into possession ment 424 that the funds come the defendant’s under section Rather, the concluded: “section (Id. in his official court capacity. p. 21.) charged 1 . with the subdivision . . intended to those punish [was] a subdivision moneys belonging and transfer of the state receipt a between there is nexus moneys when and such misappropriate thereof who ” (Id. at moneys and the charged misappropriated. are with moneys they 22, italics added.) p. “Appellant existed stating: nexus requisite
The court that the concluded transfer of charged with receipt meter collector parking County of San moneys, moneys belonging to meter parking using he moneys misappropriated, meter parking Francisco and it was thereof.” very gain his occupation possession instrumentalities of (Ibid.) Wall,
Thus, the responsi- duties a collector included the defendant’s as Al- city county meters. for funds collected from bility parking when collect- acting capacity was not his official though defendant him money, collector charged responsibility ed the his duties as a were funds meter funds. The funds that he parking misappropriated Clearly a nexus between funds taken from the meters. there was parking charged. funds with he was which misappropriated have utilized his Concededly, might position case present Wall, However, county city funds. unlike supervisor acquire peti- tioner, city as a was not supervisor, charged responsibility city funds. petitioner allegedly funds. funds misappropriated Thus, nexus he allegedly misappropriated between funds requisite *20 county the in his as a official charged position and funds with which he was does not exist. simply city
That was not with for funds does petitioner charged responsibility 424, him for violation of section subdivision 1. In preclude prosecuting view, however, my majority somewhat tortured construction opinion’s case, I conclude under the facts of this unnecessary. of the section is an and abettor in the development could be as aider prosecuted city and of a funds. implementation misappropriate plan 797, defendants, Richards Cal.App.2d v. Little 41 two People (1940) Little, 424, 1. violating section subdivision Richards charged and jury a guilty and Little convicted after trial. was pleaded city-owned Richards and collector for the employed bookkeeper system. She embezzled a amount of funds she large and water -operated Little, city not a “aided and abetted although employee, collected. encouraged (Id. p. 805.) Richards in her criminal acts.” advised Mrs. guilty he could not be found of appeal, argued On defendant Little 424, 1, . ‘charged not “. . section subdivision because he was violating ” moneys.’ of transfer or disbursement receipt, safekeeping, Penal Code section on argument relying this rejected The court (Ibid.) in the commission “All concerned part: persons relevant provides which misdemeanor, they directly crime, and whether felony or it be of a whether commission, or, offense, in its or aid or abet constituting the act commit commission, . . . are its encouraged have advised being present, and abet Little had aided Because crime so committed.” principals crime, held he could the court in the commission of ted Richards 424, 1. subdivision section violating convicted of official, evi- here, there is city was not a Similarly, although petitioner he aided and abetted inference that a reasonable support dence that would Klatt, city funds. Gene city of in the city misappropriation other officials Porterville, contacted that he was first testified engineer Huffaker, the Mr. either or Avenue project about the Morton developed plan had apparently Porterville. Petitioner city manager Klatt Mr. county improve property. be used to whereby city moneys would times to discuss several met with subsequently was aware of and Morton Avenue project. plans that was pre- regarding project item agenda Mr. Klatt prepared city The 1984. August city council approved sented to $23,250, “the construction of contribution, designated which was side, return and approxi- between the curb on the south Morton Avenue that five properties The item indicated agenda Sunrise Market.” mately had been provided estimated costs which and included were involved petitioner. the funds would indicate that item did not why agenda
When asked recol- my the best of Mr. Klatt testified: “To county purposes, be used for in a area for lection, city funds not have city expended would council, city way. right acquisition either improvement *21 been put had proposal of the fact that my was aware knowledge, best of hun- thousand two twenty-three Mr. Webb that for a payment forth share, be dollars, of Morton would the south side city is the fifty dred which county use existing either fee title or city would have improved, roadway. for that easement title money to city not use city that the could you ... Are us telling
“Q. roadway, is that it? county improve do so. have, policy not their normal but that was They
“A. could item, this you agenda that in this But are us “Q. telling approving county to improve was to be used twenty-three going thousand dollars money? city fact that was roadway despite be shown twenty-three thousand dollars could “A. The of the payment will, you if or the effective five parcels. agreement, to be cost over term, for that amount of be better which would proposal, perhaps encompass greater street be Which would money completed. would if you was reasonable money five that the amount of than the But parcels. if you also reasonable property; cost of it was acquisition considered costs, and costs.” just straight improvement no acquisition considered “. . . Klatt testified: how was to implemented, When asked the plan meet owners along He would with the personally property [petitioner] street, was, city release to them what his that would explain proposal turn, owners, would, it back to Mr. give to the who property hire the Webb. Mr. Webb secure the contractors and individuals would Mr. Webb to do work. would also contact required if that required. was what was pave-out, there that
“Q. any going Was indication Mr. Webb was to ask monies, excess over any might owners contribute have been to the properties, and above cost of front of their improvements Avenue project? balance Morton knowledge
“A. I have no Mr. Webb related to the what specific owners. Well, I’m Was you about the I know don’t know that. “Q. talking plan. plan regard? there fifty
“A. The entire back to twenty-three two would come the contrac- Mr. the rest of through improvements. tors Webb for informing Would that be own- “Q. through process cost? ers that the cost offset the improvement right-of-way so, yes.” “A. I would assume Klatt
Under cross-examination Mr. asked: *22 Now, city, your as an if this was “Q. engineer experience cost city city doing project and the was would this have project, project, if more contractors were used? private yes.
“A. Typically, ^ much of how some you give percentage Can degree? And to what “Q. more? this might percentagewise more. thirty percent
“A. Between fifteen contractors, having So, suggested, Mr. Webb by using private “Q. to this individuals, savings to be a considerable was going there private project?
“A. Yes.” asked on cross-examination:
Klatt was further that was fifty paid hundred dollars thousand two twenty-three “And under- and Mr. Huffaker’s understanding, your city, it was—was Webb and Mr. to Mr. be turned over these funds would standing, owners, in turn who funds to the property deliver those Webb would then Mr. Rodriguez? to him for payment those funds back would endorse the contractors. one of “A. Mr. was Rodriguez Yes. very instance? that the from plan the—was And that was
“Q. “A. Yes.” further,
And concerned, intent, city pay you’re as far as any Was there “Q. owners, two twenty-three thousand this these five property these people, use, people without the rest of their own fifty dollars for hundred considered? being of the street south side any of the directly deal city going “A. The owners, owners. any make promises to secure the improvements. Mr. Webb delivered to being side? On the entire south “Q.
“A. Yes. the parties those parcels improved And Mr. Webb had “Q. five if to, with the in accord not have been out that would checks were made that the that correct? agreement, is *23 ” added.) is correct. (Italics
“A. That city city officials or also about whether other Klatt was questioned Mr. also be used funds would approved were that the council members aware Mr. make “Q. you He testified: Did county personally purposes. than money for this other what there use Huffaker aware that would item? here in the agenda is proposed
“A. Yes. that? anyone you else when did
“Q. present Was staff, recollection, Monday at the my city morning “A. the entire To McGuire, Which have been Mr. William Director of meeting. staff would Parks, Services, Dick Director of Dan Community Mock[,] and Financial Mainord, chief, Prizznick, Coordinator, the fire Mr. Jerry Field Services director, Smith, have chief at that time. which would Planning police others, There have but I can’t remember the Whatley. may been Dan been right names the moment. Okay. you’ve all told us about made aware
“Q. So of these people by you Monday money going at the that this to be used other meeting here, you’re telling than what was is that what us? contemplated for, They money yes.
“A. were told The item was dis- what cussed. Okay. they What were told the was for?
“Q. “A. For the the south side of along street completion improvements Patsy to the Sunrise Market. Morton from approximately Now, than the five “Q. you’ve did that area referred to include more document, you’ve agenda owners that referred to this this document?
“A. Yes.” (Italics added.) I that the evidence was sufficient to foregoing, Based on conclude city and abetted other a reasonable inference that aided support city The above cited evidence officials in the funds. misappropriation available, county indicates that aware that funds were petitioner, whereby city moneys hatched a scheme would be used to improve both Mr. Huffaker and Mr. He this property. apparently presented plan *24 the he the item that agenda Klatt. Mr. Klatt was aware when prepared on for not listed funds to be used improvements properties were intended city for this to the disclosing item. His stated not agenda purpose the county a city city funds in that “the would not have expended council was way.” Although Mr. right for of acquisition area either improvement improve- be for than the Klatt was that the funds were to used other aware grounds this on the of cost city justify ment of he seeks to property, have to efficiency: be for what would cost improved the entire street could essence, In the are justification five city plan improve properties. not always justify been—the end does they and infirm now as have aged the means.
Moreover,
not only
evidence that
was
aware that
ample
petitioner
there is
for
the funds was not the
intended
purpose
which
used
purpose
council,
Mr. Klatt.
city
knowledge
but
full
initiated the actions of
with
60,
1318].)
674 P.2d
Cal.Rptr.
v. Beeman
As the whereby figure in the instigator plan was “the the dominant moneys belonging misappropriated.” Although petitioner did act alone in have been the “dominant might figure” apparently city funds. The evidence the preliminary the effort misappropriate (and city officers) that at least Mr. Klatt other hearing suggests perhaps county be and that city property aware that funds were to used improve city a of the checks to the five owners was simply the issuance city legitimate the disbursement from the having appear means fact, or Mr. Klatt that city it was not intention of expense. plan for but rather the anything, owners be compensated merely city was used to subterfuge improve which property. with city charged the evidence indicates that at least one official
Because in the city misappropriate funds was involved responsibility plan I could be held conclude that city along petitioner, funds 1, 424, that he aided and theory subdivision on the a violation of section city funds. city officials to conspired misappropriate abetted or that the “un- However, holding majority’s I dissent from the respectfully Street the South Main surrounding purchase usual circumstances” 1. subdivision a violation of section constitute *25 1, 424, it must be of section subdivision to establish a violation In order charged responsi- that a official or “other person” demonstrated public funds, benefit or the funds to his personal bility misappropriated for public the officer or other This section where applies the benefit of others. funds, duty he has the of of but also where public has person possession 516, Qui v. Mei Lee 48 (1975) Cal.App.3d funds. controlling public (People 523 Cal.Rptr. 43].) [122 case, caused majority
In the concludes that because petitioner present $50,000 control of acquired Ruddock to ask for the somehow property them. county Unquestionably, funds and subsequently misappropriated $50,000 of the and of the size of fully Board was aware of price Evidently, scrutiny is in the Board’s majority’s the focus of parcel. had been It instigation. lack of awareness that raised price petitioner’s clear, was, however, in issue money is that the for appropriated fact, for title to that no sense was paid property. spent That, any by other than authorized the Board. after that which was purpose a money ultimately may have been to the Board payment, put purpose however, is, concern; I fail was not aware of a matter of appropriately, a 424. Al- see how conduct constituted violation section petitioner’s I though ultimately indirectly the transaction inured to his benefit or profit, $50,000 by do not that Ruddock to ask agree causing $45,000 which could have been control purchased acquired otherwise $4,351.91 . of “the extra funds. . .” majority is concerned that conduct resulted apparently petitioner’s indirectly in his a benefit or from the transaction. receiving profit Although moneys did he received exercise control of additional when escrow, they county them on release from at that time had ceased to be funds and constituted a from the sale. Because did not profit benefit, county I cannot that there was agree exercise control of funds to his 424, cause to section subdivision 1. believe violated probable however, say, chargeable That is not conduct is not as petitioner’s in relevant part a criminal offense. Government Code section 1090 provides made financially officers “shall not be interested contract they are by any body them in their official or or board of which capacity, by a fine of not members.” Willful violation of this statute “is punishable in the state ($1,000), more than one thousand dollars or imprisonment any office in this state.” holding and is forever from prison, disqualified 900 Code, Government Code “The
(Gov. 1097.) purpose prohibition [in § official would stand prevent public section is to situation where 1097] a contract over which respect lose gain something making Vallerga (People some v. his official he could exercise influence.” capacity 868, 429].) fn. 5 (1977) Cal.App.3d Cal.Rptr. [136 out of “A officer make unauthorized may profit particu- an public v. Bender (Terry lar has been entrusted his care.” public business which 198, 211 P.2d 119].) (1956) Cal.App.2d [300 one, interest need not be a direct since the purpose “The officer’s also all an interested officer the statutes is to remove indirect influence of *26 . dishonesty. . . well deliberate discourage as “ ‘. himself in places . . He has an interest the moment a situation faithful performance “where his interest will conflict with the personal ” (Id. 206-207.) his trustee.” duty pp. [Citations.]’ case, ask In induced Ruddock to apparently the present $50,000 willing have to sell to for the which he would been $45,000. a the sale Petitioner’s create from purpose profit lot in cover incurred in the split order to his costs expenses in the a financial interest original doing, petitioner acquired so purchase. County. had a sales between Ruddock and the Because contract contract, Government Code financial interest violated arguably I what indulge logically section cannot convert is attempt 1090. is the interest a violation of section because that simply conflict of into allegation lodged. reminder
I this is a government people conclude therefore, govern- have a to know what right the people. people, end, is government ment To this the business of conducted does. serve scrutiny day public in the Not is shadows. light duty officials not to circumvent thing, bad is public review. by the Court denied Petitioner’s for review application Supreme 15, 1988. September