People v. Bartlett

• Decision Date: 16 January 1962
• Docket Number: Cr. 1588
• Citation: 18 Cal.Rptr. 480,530 P.2d 168,199 Cal.App.2d 173
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Thomas C. BARTLETT, Joseph Davidson, Roy Macy, Richard L. McAdams and Thomas R. Yarborough, Defendants and Respondents.

Page 480

18 Cal.Rptr. 480

199 Cal.App.2d 173

The PEOPLE of the State of California, Plaintiff and Appellant, v. Thomas C. BARTLETT, Joseph Davidson, Roy Macy, Richard L. McAdams and Thomas R. Yarborough, Defendants and Respondents.

Cr. 1588.

District Court of Appeal, Fourth District, California.

Jan. 16, 1962.

Rehearing Denied Feb. 9, 1962.

Hearing Denied March 14, 1962.

Stanley Mosk, Atty. Gen., Charles A. O'Brien Chief Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for appellant.

S. V. O. Prichard, Hollywood, for respondents.

GRIFFIN, Presiding Justice.

This action arose out of a grand jury investigation concerning certain alleged problems existing in the city of Elsinore. (See Michaels v. Superior Court, 184 Cal.App.2d 820, 7 Cal.Rptr. 858; People v. Kegley, 197 Cal.App.2d 501, 17 Cal.Rptr. 784.) The grand jury transcript consisted of 960 pages. There were 67 exhibits. Less than 25 pages of transcript and only one exhibit related directly to the present indictment of these defendants. The defendants were city councilmen, including the mayor, and were charged with the crime of conspiracy in that on September 8, 1959 they feloniously and knowingly conspired to 'wilfully and unlawfully violate the terms and provisions of a water permit issued by the State Department of Public Health of the State of California, said permit issued in accordance with the provisions of the Health and Safety Code' in violation of section 4032 thereof. Five overt acts are charged: (1) that they met at a regular session of the city council on September 8, 1959; (2) that Councilman Macy proposed a resolution that the water superintendent be instructed to fill the reservoir with 100% mineral water; (3) that Councilman McAdams then seconded the motion; (4) that all defendant councilmen then voted 'aye' on said resolution; and (5) that said councilmen on said day caused 100% mineral water to flow through the water mains of the city of Elsinore in violation of the State Department of Health Water Permit.

It should be here noted that there is no allegation in the indictment as to the terms of the alleged water permit, when it was issued, or the manner in which said alleged permit was violated. Health and Safety Code, section 4032, referred to therein, provides that:

'Every person who knowingly violates or knowingly fails to comply with any of the provisions of this chapter, or of any order of the board issued pursuant to this chapter, or who procures, aids, or abets in any such violation or failure, is guilty of a misdemeanor * * *.'

On this appeal, it is conceded by the People, appellant herein, that the grand jury never had before it, in evidence, an actual or certified copy of any permit claimed to have been issued by the State Board of Health to the city of Elsinore and that before section 4032, supra, can be violated, there has to be, in fact, in existence an 'order of the board.' However, it is argued in this connection that there was sufficient showing by witnesses testifying before the grand jury as to the contents of the permit and the fact that a permit was issued. The People succinctly state that they never did advance the theory that the grand jury itself had power to take judicial notice of anything properly the subject of judicial notice, but claims here that at any stage of these proceedings, under Penal Code, section 995, the judge could, under Code of Civil Procedure, section 1875, subdivision 3, pertaining to judicial notice of public and private official acts, take judicial notice of the issuance of the permit and its contents and its judicial notice would thereby supply the necessary proof of such evidence when considering the motion. (Citing People v. City of Los Angeles, 83 Cal.App.2d 627, 647, 189 P.2d 489; People v. Stralla, 14 Cal.2d 617, 96 P.2d 941; Wilson v. Loew's Inc., 142 Cal.App.2d 183, 187, 298 P.2d 152.)

At the time of opposing the motion, appellant submitted, with his points and authorities, what appellant purported to be a certified copy of the permit, which appellant claims defendants violated, and asked the trial judge to take judicial notice of it in his review of the evidence taken before the grand jury and upon which the indictment was founded.

Apparently the document referred to as being attached to appellant's points and authorities was read and considered by the trial judge and respective counsel. This document purported to be a conditional permit of some description. It was not marked for identification and has not been brought to this court for examination or for reference. We have examined the entire proceedings had before the trial court. The court there inquired of counsel for appellant if that was the only document upon which appellant relied as being the permit. He answered in the affirmative and read from a small portion of it which stated, '* * * permit issued on the following conditions.' The court remarked that it purported to be only a letter written by the director of public health without noting any action taken by the board; that the letter stated in part:

'Permit is hereby granted to the City of Elsinore as applied for, said permit being subject to the following provisions * * * Please send us a letter indicating your acceptance of the above provisions and your intentions and ability to comply with them.'

Appellant then offered to show that this was the action of the board and was in accordance with their rules and regulations, if the court would then grant a continuance for some period for this purpose. The court denied the request with the statement:

'I don't believe the document that you say is a permit is a permit * * * All that this letter is is a letter by the Director referring to the Department, not to the Board, and seems to be preliminary to the issuance of a permit.'

The court refused to take judicial notice that this was the permit referred to in the indictment. It was then suggested by defendants' counsel that the permit would not come into existence until the directive of the State Board had been accepted in writing and, '* * * there is no evidence that the City of Elsinore has accepted in writing.' From the record before us, we are unable to hold that we must take cognizance of the permit and its terms, particularly where the document and its terms are unknown to us and where the trial court concluded that it was conditional and not the permit alleged in the indictment.

Counsel for appellant now attaches to his opening brief in this court what purports to be a certified copy of the minutes of the State Board of Public Health meeting of August 22, 1958, reciting:

'Mr. Reinke reviewed the matter of application of the City of Elsinore for permit to use existing works supplemented by treated Colorado River water for the distribution of domestic water to the residents of the City of Elsinore. One provision in the application is different from other permits which is:

'The City 'high fluoride' well water shall not be pumped into the distribution system unless it has been treated, or blended with an approved water supply so that the final water as delivered to the consumers will not have a concentration of fluorides in excess of 1.0 part per million;

'After discussion, Dr. Volonte moved, Dr. McClendon seconded, and the Board recommended that the City of Elsinore permit for water be issued.'

He now asks this court to take judicial notice of these proceedings in passing on the merits of the order of the trial court dismissing the indictment for lack of competent evidence before the grand jury. Without the presence of the permit or a certified copy thereof claimed to have been issued and violated, judicial notice of the minute order would serve no useful purpose.

In McPheeters v. Board of Medical Examiners, 74 Cal.App.2d 46, 168 P.2d 65, this court held that although a court will take judicial notice of the records of a public agency, the court should be furnished with some...