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People v. Battin
Citations: 77 Cal. App. 3d 635; 143 Cal. Rptr. 731; 95 A.L.R. 3d 248; 1978 Cal. App. LEXIS 1246Docket: Crim. 9051
Court: California Court of Appeal; January 18, 1978; California; State Appellate Court
Defendant Robert William Battin was charged with theft, misuse of public funds, and presentation of fraudulent claims. A jury found him guilty of misuse of public funds but not guilty of fraudulent claims, while the theft charge resulted in a hung jury and was later dismissed. The court suspended his sentence, placing him on three years of informal probation with six months in county jail (five months suspended) and a $3,500 fine. Battin filed multiple motions to dismiss the charges based on various grounds, all of which were denied. After trial, his motion for a new trial was also denied. Battin's actions as a county supervisor included using county resources and staff for his campaign for Lieutenant Governor, explicitly instructing staff to prioritize campaign work during county working hours. The defendant did not hire additional staff for his campaign but received volunteer assistance from his girlfriend and her friends. His hiring practices emphasized the need for staff to engage in campaign work. During interviews, candidates like Julie Helling Grimes were asked about prior campaign experience and party affiliation. Dan Ryan was informed that registering as a Democrat would enhance his employment prospects. Staff member Ron Dosh worked additional hours under the threat of job loss for non-participation in campaign activities. Janet Turner was hired after proving her Democratic registration and was questioned about her willingness to do campaign work. Dawn Papp was informed about the expectation to work on the campaign as part of her role as Mr. Battin's secretary. From February to June 1974, the supervisory staff undertook various tasks to support the defendant's nomination, including addressing envelopes, preparing newsletters, managing campaign materials, making phone calls for event planning, and obtaining lists of polling judges, all during official business hours. Specific contributions included Steve Knobloch's efforts to obtain Democratic Central Committee membership lists and commercial inquiries for campaign advertising. Dan Ryan maintained a file of constituents and sent out campaign materials, while accompanying the defendant on campaign trips. Dawn Papp typed authorized campaign letters and worked on a campaign commercial. After the primary, she sent out "thank you" notes to supporters. Janet Turner dedicated a significant portion of her time to campaign tasks, including copying a campaign essay for the defendant. Other staff, like Patti Short and Ted Moraitis, also contributed to campaign efforts, managing communications and organizing events, often outside regular hours. During the trial, it was established that the defendant's supervisorial work occurred between February and June. Testimony by Janet Turner revealed a secretive atmosphere in the supervisor's office, where campaign work was conducted on county time, particularly using the county's Xerox machine. Staff were instructed to avoid letting others see campaign materials being copied. At the defendant's direction, campaign materials were moved from the supervisor's office to his law office to avoid scrutiny. After a newspaper article raised concerns about the legality of using county staff for campaign work, the defendant and Moraitis decided to temporarily remove most of the supervisor's staff from the county payroll and pay them from personal funds for a two-week period, while allowing Moraitis and Dawn Papp to remain on payroll due to their perceived substantial county work. Despite this, they continued campaign activities, and the defendant instructed them to prioritize campaign efforts until after the June primary. In July 1974, Papp left her position and mentioned her campaign work to her new employer, Attorney William Dougherty, who was unaware of the legal implications at that time. Following news of indictments against other officials for illegal campaign practices, Dougherty encouraged Papp to disclose information about the defendant's campaign activities, leading to an investigation and the defendant's conviction. The defendant presents several grounds for appealing his conviction, categorized into six main areas: 1) challenges to the application of Penal Code section 424, subdivision 2; 2) the constitutionality of this section; 3) claimed failures in proof and jury instruction errors; 4) procedural issues; 5) allegations of discriminatory prosecution; and 6) conflict of interest. At the time of conviction, Penal Code section 424, subdivision 2 penalized county officers for misusing public funds, with potential imprisonment of one to ten years and disqualification from holding office. Determination is required on whether the staff's campaign activities represent a misuse of public funds and if sufficient evidence was presented for a legal violation. To assess misuse, it is essential to clarify the purpose of staff salaries paid from February to June. If these funds were allocated solely for county work, there would be no misuse. Conversely, if employees received pay for both county and campaign duties, it must be evaluated whether public funds can be used for campaigning. The defendant claims that salaries during this period were exclusively for county work, citing an opinion from County Counsel Adrian Kuyper and trial testimony. Kuyper’s August 28, 1975, opinion indicated that the Orange County personnel resolution does not mandate a minimum work hour requirement for staff, allowing supervisors to set their hours. Michael Raith, chief of claims and disbursing for Orange County in 1974, supported this view but noted that while staff could take time off, they should not perform personal tasks for supervisors during county time. Evidence indicates that staff were compensated for campaign work despite the allowance for occasional time off. Time sheets from February to June 1974 showed full-time staff logged 80 hours biweekly, without accounting for hours spent on campaign activities. Staff salaries were based on these time sheets, which implied they represented county work hours. The defendant failed to ensure that staff were compensated only for their actual county work hours, suggesting that their pay included time spent on campaign efforts. Additionally, it must be established whether the defendant directly used county salaries for his campaign. The personnel resolution requires that the department head file a certification with the Auditor-Controller confirming that employees performed required county services. The defendant certified the staff time sheets for February through June, asserting that all employees had performed the services as documented, thereby authorizing their salary payments in accordance with the resolution. Raith testified that the defendant's certification represented a disbursement of county funds necessary for staff payments. The defendant argued he did not disburse public moneys as he lacked actual custody of the funds. He referenced legislative history and case law, notably People v. Knott and People v. Dillon, to support his position. However, in People v. Qui Mei Lee, the court rejected this argument, clarifying that the applicability of section 424, subdivision 2 is not limited to those with actual custody of public funds. The court emphasized that the defendant's approval of invoices allowed him to control the disbursement of public moneys. Similarly, in People v. Sperl, the Court of Appeal upheld a conviction under section 424, subdivision 3 for authorizing noncounty activities, linking time records to public fund disbursement. The defendant's actions in diverting county employees for personal political campaign tasks constituted authorized misuse of public moneys. The court affirmed that salaries are deemed public moneys under section 424, and the defendant's authorization of illegal salary payments violated this section. Lastly, the document addresses the constitutionality of Penal Code section 424, subdivision 2, following the conclusion that the defendant misused county funds in violation of this statute. Penal Code section 424, subdivision 2, is challenged by the Defendant as an ex post facto law, arguing that its application criminalizes conduct that was previously innocent. The Defendant cites opinions from County Counsel Adrian Kuyper to assert that using publicly funded staff for campaigning is permissible. However, the first Kuyper opinion clarifies that staff do not need to work a specific number of hours to receive payment, which does not authorize using county staff for campaigns. The second opinion permits county-funded newsletters related to county interests, but the Defendant's newsletters announced his candidacy for Lieutenant Governor and solicited campaign contributions, which were sent to both constituents and non-constituents. The court points out that similar activities by state officials have led to indictments and convictions, indicating that such actions are not sanctioned. Historical cases, including Mines v. Del Valle and Stanson v. Mott, emphasize that using public funds for partisan elections is deemed improper, raising constitutional concerns. The judicial consensus reflects a fundamental principle of democratic elections: the government must remain neutral and not provide an unfair advantage to any candidate. The text concludes that the use of public funds for campaign purposes is considered inappropriate in all election contexts, including bond issues. The use of publicly funded staff for political campaigns is not legally sanctioned, as established by the Supreme Court and historical application of Penal Code section 424, which has been enforced since 1872 against officials misusing public funds for political purposes. The defendant's argument that section 424, subdivision 2, is vague and unconstitutional for failing to provide fair notice of prohibited behaviors is addressed by the principle that penal statutes are presumed valid and need only reasonable certainty. The language of section 424, subdivision 2, clearly prohibits the use of public moneys for unauthorized purposes, aligning with California Supreme Court rulings that affirm public funds can only be spent as explicitly authorized by law. The powers of county supervisors are strictly defined by law, and any unauthorized expenditure, including for political campaigns, is prohibited. The defendant's claims that the statute is vague or infringes on First Amendment rights are countered by established legal principles and the explicit limitations on supervisors' powers, which do not include funding political activities. Section 424, subdivision 2 establishes that it prohibits any behavior not previously authorized by statute or ordinance, differing from typical penal statutes that list prohibited actions. The court's analysis in People v. Sperl addressed claims of vagueness, concluding that the defendant was aware of the statute's prohibitions as he actively sought to conceal evidence of misconduct. The court affirmed that section 424, subdivision 2 is not unconstitutionally vague, since the defendant had sufficient notice of his illegal actions. Regarding First Amendment rights, the statute restricts county employees from campaigning only during work hours, allowing them to campaign freely outside of these hours. The argument that the statute is overbroad was rejected, as the defendant did not specify any constitutionally protected conduct that the statute limits. Lastly, the defendant argued that section 424, subdivision 2 violates the separation of powers doctrine by undermining legislative control over executive spending. Citing Public Citizen, Inc. v. Simon, the court emphasized that taxpayer challenges to executive spending must be based on specific constitutional limitations to avoid unnecessary judicial interference with other branches of government. A specific legal prohibition exists against the unauthorized expenditure of county funds, as established by section 424, subdivision 2, which empowers courts to impose sanctions for violations. The defendant argues that his conviction should be overturned due to the lack of proof regarding the specific dollar amount of loss to the county and the absence of jury instructions on specific intent. However, there is no legal requirement for demonstrating a specific monetary loss in such cases, rendering the defendant's claim meritless. The defendant also contends he acted in good faith based on reliance on county personnel and salary resolutions, citing Stanson v. Mott, which pertains to civil liability for misuse of public funds. The court distinguishes between civil and criminal liability, indicating that the standards cannot be equated. Regarding the sufficiency of evidence, the court emphasizes that it must view the evidence favorably for the respondent and uphold the trial court's findings if they are reasonably justified. After reviewing the evidence, the court concludes that the defendant orchestrated a scheme to utilize county resources for campaign activities, despite recognizing the illegality of his actions. The evidence shows extensive use of county office equipment and staff time for campaign purposes, and the defendant's own calculations regarding campaign literature do not negate the broader misuse of resources. Section 424, subdivision 2, prohibits any misuse of public funds, regardless of the amount, and substantial evidence supports the defendant's crime. The defendant argues that violations of this section should be classified as "specific intent" crimes and claims the jury received a "strict liability" instruction rather than one for "specific intent." However, the trial court provided a "general intent" instruction. The determination of whether a violation constitutes a "general" or "specific intent" crime is discussed, with the court concluding that section 424 does not require proof of specific intent, as it is not categorized as an embezzlement statute. The defendant's argument that good faith should necessitate a "specific intent" instruction is countered by court precedent, specifically the Dillon case, which dismissed similar arguments. Regarding the consequences of the conviction, the defendant asserts his misdemeanor status and lack of moral turpitude should prevent disqualification from public office. He references People v. Simon to support his claim of misdemeanor classification, but the court distinguishes section 424 from section 476a, noting that section 424 mandates incarceration in state prison and does not allow alternative sentencing, thus disqualifying the crime from being deemed a misdemeanor under Penal Code section 17, subdivision (b). Penal Code section 17, subdivision (a) classifies the defendant's crime as a felony punishable by state imprisonment. The defendant argues that his conviction should not disqualify him from holding elective office, claiming that his actions did not involve moral turpitude. However, section 424 explicitly disqualifies individuals found guilty under its provisions from public office, and the court finds it unnecessary to assess the moral nature of the defendant's actions. Regarding procedural issues, the defendant contends that the district attorney's failure to subpoena his girlfriend and other campaign volunteers for the grand jury constitutes reversible error. He claims their testimony was crucial and could have influenced the grand jury's indictment decision, referencing Johnson v. Superior Court, which mandates that a district attorney must inform the grand jury of evidence that may negate guilt. However, the court notes that Johnson only applies to grand jury proceedings after September 19, 1975, while the defendant's grand jury meeting occurred in August 1975. Even if applicable, the defendant had already testified about the volunteers, and the grand jury could have subpoenaed them if desired. The court concludes that the district attorney fulfilled any obligation to disclose information. Additionally, the defendant argues that his conviction should be overturned due to the trial court's denial of discovery for materials related to unnamed members of political factions in Orange County. He asserts that access to these files could suggest discriminatory prosecution. However, the trial court had allowed discovery of specified materials related to the defendant's claim but denied access to unspecified files. The court finds the defendant's reliance on Murgia v. Municipal Court misplaced, as the defendant failed to specify the additional materials he sought. The court finds the defendant's request for discovery unclear, referencing the California Supreme Court's ruling in Hill v. Superior Court, which allows the trial court discretion to deny discovery without a specific showing of the materials sought and a plausible justification for inspection. The trial court did not err in refusing to order discovery of unspecified materials. Regarding the exclusion of evidence, the defendant argued that the trial court wrongly deemed irrelevant his past actions of returning salary to the county and underspending his budget. The court upheld the trial court's discretion, stating that the relevance of past acts to the current charges was insufficient, and past conduct cannot be used to establish character for the purpose of proving innocence. Additionally, even significant budget underspending does not excuse a violation of section 424, subdivision 2 if funds were misused. The defendant also contended that his acquittal on one charge should prevent his conviction on another, invoking the doctrine of collateral estoppel. The court rejected this argument, clarifying that the doctrine does not apply to inconsistent verdicts within the same trial. The court further explained that the essential elements of the charges were not identical, meaning that acquittal on one did not preclude conviction on the other. Specifically, a violation of Penal Code section 72 requires intent to defraud, which is not necessary for a violation of section 424, subdivision 2. A conviction under Penal Code section 424, subdivision 2, indicates that a false claim was made with general criminal intent but without intent to defraud, rendering the defendant's argument meritless. The defendant argues that a 14-month delay between his actions and indictment prejudiced his case due to witness memory loss and unavailability. However, he fails to provide evidence of witness memory loss and the two unavailable witnesses, who were his campaign volunteers, were deemed non-material to his guilt as their testimony wouldn't negate the misuse of county staff. The delay in reporting the crime to the district attorney's office in July 1975 accounts for the indictment delay. Regarding juror misunderstanding, the defendant submitted an affidavit from juror Gloria Godfrey, claiming she would have voted not guilty had she understood the jury instruction better. However, since jurors cannot impeach a verdict based on subjective interpretations of their own thought processes, this claim is invalid. The law permits jurors to challenge a verdict only through objective facts, making the defendant’s argument on this point meritless. The defendant also alleges bias among certain jurors, which is currently under review following a petition for a writ of habeas corpus. This matter will be addressed in a future evidentiary hearing. Additionally, the defendant argues for reversal of conviction based on discriminatory prosecution and a conflict of interest within the district attorney’s office, which were raised in pretrial motions. The trial court responded to these claims, but the document does not specify the court's conclusions. The District Attorney's actions are deemed reasonable law enforcement by the court, which found no evidence of discriminatory prosecution, leading to the denial of the motion to dismiss the indictment. Discriminatory prosecution can reverse a conviction if a defendant proves they were deliberately singled out based on an invidious criterion and that prosecution would not have occurred but for this discriminatory intent. The defendant argued he was unfairly targeted by District Attorney Hicks for using his staff for campaign work, claiming a pattern of bias against his political group while favoring a rival group. However, the court noted that other officials had faced prosecution for similar activities, undermining the defendant's assertion of discrimination. Furthermore, while some members of the defendant's political group were prosecuted, the court found that investigations of both groups occurred without bias, and many individuals from the rival group were not charged due to insufficient evidence, contradicting the defendant's claims of intentional discrimination. The trial court found no evidence of a systematic discriminatory prosecution by the District Attorney, which is supported by substantial evidence. The defendant did not meet the substantial burden of proof required for a claim of discriminatory prosecution. There was evidence of animosity between the defendant and District Attorney Hicks, stemming from their membership in rival political groups and conflicts over the district attorney's office policies from 1968 to 1975. Notably, in 1975, tensions escalated when the defendant and others voted to transfer investigators from the district attorney's office to the sheriff's department, which Hicks perceived as an attempt to obstruct investigations, particularly against a leader of the defendant's group. Public insults were exchanged between the defendant and Hicks following this incident. The prosecution process began in 1975 under Michael Capizzi, director of the "Special Operations" division, which included a "Special Assignment" unit handling investigations of public officials. Such investigations typically originated from citizen complaints. Capizzi testified that he made the final decision on cases presented to the grand jury, while Hicks was kept informed but did not evaluate these cases. The mid-1970s saw numerous investigations of local officials. The case against the defendant was initiated after Robert Dougherty reported information about him to Hicks, who then handed the matter to Capizzi without further instructions. Hicks remained largely uninvolved in the case, only receiving updates and consulting on the matter before it was submitted to the grand jury. Capizzi, after reviewing Ms. Papp's account, conducted a preliminary analysis and concluded that if her statements were truthful, the case warranted grand jury consideration. He reached out to Jack Winkler from the Attorney General's office for investigative and prosecutorial support. Although the Attorney General's office dispatched three investigators to Orange County, they opted not to prosecute, citing the district attorney’s strong track record of fair investigations. Prior to presenting the case to the grand jury, Capizzi consulted with Hicks, other district attorney staff, and investigators from both offices. Capizzi acknowledged the existence of differences between Hicks and the defendant but asserted these did not influence his decision. Hicks also testified he held no personal animosity toward the defendant despite their policy disagreements. The trial court concluded that no deliberate discrimination occurred, affirming the propriety of the investigation and prosecution, and found substantial evidence supporting this conclusion, rejecting the defendant's claims of discriminatory prosecution. Regarding a claimed conflict of interest, the defendant argued that District Attorney Hicks was unable to execute his duties due to a pending civil suit involving county employees, the necessity for district attorney staff to testify, and alleged personal animosity. The law on conflicts of interest, as illustrated in *People v. Superior Court (Greer)*, establishes that while conflicts requiring disqualification of a district attorney are rare, a trial judge can disqualify a district attorney if it is determined that a conflict could impair their impartiality. However, the Supreme Court noted that the separation of powers doctrine limits the reassignment of prosecutions, even in the presence of serious conflicts. The court has the discretion to excuse the district attorney from a case, but this decision can only be overturned on appeal if there is an abuse of discretion. In examining the defendant’s concerns regarding conflicts of interest, the court referred to precedent cases, including Sinclair and Ganger, where significant personal involvement of prosecutors in related civil matters created conflicts. In Sinclair, the prosecutor represented the bank involved in the defendant's bad check case, while in Ganger, the prosecutor also represented the victim in a divorce stemming from an assault charge. These cases demonstrated clear conflicts due to the prosecutors' dual roles. In contrast, the lawsuit involving the employees' association and the county, aimed at securing pay raises for deputy district attorneys and public defenders, does not inherently signify a conflict of interest for the district attorney since such disputes are common and not directly linked to the prosecution. The defendant's claim that the district attorney’s office should not have prosecuted the case due to testimonies from its members at the pretrial hearing is unfounded, as their input was necessary to address the defendant's allegations of discriminatory prosecution. Their testimony did not compromise the integrity of the trial. Lastly, the defendant's assertion that disagreements with the district attorney created a conflict of interest is unsupported by substantial evidence. The investigation and prosecution of the defendant in the "Special Assignment" office were conducted without evidence of bias or undue animosity from the district attorney, who had previously declined to prosecute the defendant for trespassing and falsification. Both prosecutors, Hicks and Capizzi, asserted that prior confrontations with the defendant did not influence their decisions. The nature of the relationships between the prosecutors and the defendant was not deemed significant compared to previous cases, and the trial court found the prosecution to be fair, leading to the affirmation of the judgment. Subsequent petitions for rehearing and a Supreme Court hearing were denied. Additional notes indicate that Turner left the supervisor's office due to secrecy, and Dougherty's actions were prompted by awareness of illegal activities after other officials were indicted. A 1977 amendment to Penal Code section 424 introduced a determinate sentence. Testimony at trial revealed expectations for staff to work reasonable hours to be compensated and clarified that county services were required by law. The defendant's absence led to the use of his signature stamp on time sheets, but he personally approved others. The court found the defendant's arguments regarding his role and knowledge of campaign-related staff use unconvincing, particularly noting that his claims of reliance on legal opinions were belied by the timeline of events. The case referenced involved improper use of staff and resources for political campaigning. Counts against the defendant for violations of section 424 were dismissed, as the court determined that the authority in question qualifies as a public corporation, not a government division as defined by the statute. However, counts for violations of Penal Code section 504, concerning embezzlement of public moneys, remain valid. The staff activities referenced in the case are akin to previous misconduct in Holtzendorff, where Los Angeles County Marshal's office employees misused county time for political lobbying and personal errands. The Court of Appeal upheld convictions for these offenses, emphasizing the misuse of public resources for private political purposes. Further examples include city councilman Nathanson, who improperly used official stationery for his reelection campaign, and Harby, who was convicted of embezzlement for using city vehicles for unauthorized purposes. The powers defined in relevant sections are mostly clear, except section 25207, which grants supervisors broad authority to perform acts required by law not explicitly mentioned. In cases involving section 424, officials faced prosecution for actions that, while not explicitly condemned, lacked legal authorization. The legal precedent emphasizes that custodians of public funds must manage them strictly according to the law. The defendant argues that staff could have taken time off for campaign work, but the court views this as part of a systematic plan to coerce county employees into campaign activities, rather than voluntary assistance. Additionally, the court did not find any indication of "good faith" in the defendant’s actions. The defendant's counsel failed to adequately differentiate between specific intent, general intent, and strict liability crimes. Specific intent requires awareness and desire for the outcomes of actions, while general intent involves knowingly or willfully committing acts. Strict liability crimes do not necessitate a union of intent and action. The reference to Morissette v. United States reinforces that intent is a critical element in criminal liability for the knowing conversion of government property. Defendant's claim that any form of larceny, including misuse of public funds, must be classified as a "specific intent" crime was rejected. The court affirmed that criminal intent is a necessary element of a violation under section 424, subdivision 2, but this intent is general, not specific. The jury received an appropriate instruction on general intent, which states that a person acts with general criminal intent when they intentionally engage in conduct that the law defines as criminal, regardless of their knowledge of the act's unlawfulness. The trial court declined the defendant's proposed jury instruction that required proof of specific intent for a conviction under section 424.2. The court acknowledged that while several courts have characterized section 424, subdivision 2 as an embezzlement statute, it distinguished it from the embezzlement of public funds statute, section 504. The defendant's attempt to argue that section 424, subdivision 2 is a specific intent crime using the doctrine of ejusdem generis was found to be unsupported by precedent. Additionally, the court clarified that the classification of a crime as a felony or misdemeanor is determined by the sentence imposed. In this case, since the imposition of the sentence was suspended, the confinement served as a condition of probation did not classify the offense as a misdemeanor. Furthermore, during oral arguments, the defendant shifted focus from political faction issues to personal animosity towards the district attorney, leading the court to question the relevance of his argument regarding discovery. The defendant also failed to provide a copy of his discovery motion in the appeal record. The court referenced a recent ruling affirming the necessity of specificity in discovery requests, highlighting that in a related case, a defendant was acquitted after being tried for robbing one of several individuals simultaneously present during the crime. The defendant was prosecuted for robbing one of six individuals, but the Court of Appeal ruled that this prosecution was barred by collateral estoppel stemming from a prior case. An affidavit by juror Gloria Godfrey, submitted as part of the defendant's motion for a new trial, was struck by the trial court. The motion to consolidate the determination of the alternative writ with the appeal was denied. The defendant had three complaints filed against him with the district attorney's office in 1969 and 1972, which did not lead to prosecutions. He opposed budget allocations for prosecuting victimless crimes, and one of the board members, LeRoy Rose, was affiliated with a group advocating against such prosecutions. The defendant referred to two additional cases involving himself and the district attorney in his reply brief, but since these were not mentioned in his earlier brief, they were not considered. He also claimed prosecutor Jack Ryan was biased against him, citing an instance where Ryan allegedly insulted him; however, the defendant did not provide a reference in the record to substantiate this claim, and the court is not required to accept unsupported assertions.