People v. Bradley

• Decision Date: 01 August 2012
• Docket Number: No. B175564.,B175564.
• Citation: 208 Cal.App.4th 64,2012 Daily Journal D.A.R. 10597,145 Cal.Rptr.3d 67,12 Cal. Daily Op. Serv. 8663
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Omar BRADLEY et al., Defendants and Appellants.

208 Cal.App.4th 64

145 Cal.Rptr.3d 67

12 Cal. Daily Op. Serv. 8663

2012 Daily Journal D.A.R. 10,597

The PEOPLE, Plaintiff and Respondent,

v.Omar BRADLEY et al., Defendants and Appellants.

No. B175564.

Court of Appeal, Second District,

Division 8.

Aug. 1, 2012.

Ralph H. Goldsen, Goleta, for Defendant and Appellant Omar Bradley.

Richard D. Miggins, for Defendant and Appellant Amen Rahh.

Tedford & Walters, Pasadena, and James R. Tedford II; Robert W. Walters, for Defendant and Appellant John Johnson II.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Susan Sullivan Pithey and Steve D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

FLIER, J.

In 2006, we affirmed the convictions of appellants, Omar Bradley, Amen Rahh, and John Johnson II, for misappropriation and misuse of public funds under Penal Code section 424. Appellants were former high officials of the City of Compton (Compton or City).¹ Appellants were allegedto have misappropriated and misused public funds by (1) charging personal expenses to their City credit cards, and (2) “double-billing” the City for their travel expenses by obtaining cash advances for the expenses and then, instead of paying for the expenses with cash advanced, charging such expenses to the City credit card.

Almost five years later, the Supreme Court returned the case to us to reconsider it in light of Stark v. Superior Court (2011) 52 Cal.4th 368, 128 Cal.Rptr.3d 611, 257 P.3d 41( Stark ), which holds that section 424 requires “that the defendant knew, or was criminally negligent in failing to know, the legal requirements that governed the act or omission.” ( Stark, at p. 377, 128 Cal.Rptr.3d 611, 257 P.3d 41.) Without the benefit of Stark, the trial court failed to instruct the jury on the scienter required for a violation of section 424. With respect to Johnson and Rahh, the error was harmless beyond a reasonable doubt and the judgments against them are affirmed. With respect to Bradley, the error was not harmless beyond a reasonable doubt, and the judgment against him is reversed.

PROCEDURAL HISTORY

Appellants and other defendants were charged by indictment with misappropriating public funds (§ 424, subd. (a)(1); count 1) and misusing public funds (§ 424, subd. (a)(2); count 2).² A jury returned guilty verdicts against appellants on both counts as charged.

The court denied probation to Bradley and Johnson. The court sentenced each to the midterm of three years in state prison on count 1, plus a concurrent three-year sentence on count 2. The court also imposed a restitution fine of $200 and imposed and stayed a parole revocation fine of $200 upon each of them. Bradley received a presentence custody credit of 140 days (subsequently recalculated to 158 days) and Johnson received a presentence custody credit of 141 days.

The court granted Rahh three years of formal probation on condition he serve one year in county jail and perform 200 hours of community service. The court ordered Rahh to pay a restitution fine of $200 and awarded him a presentence custody credit of 141 days. The parties stipulated that Rahh owed victim restitution in the amount of $8,523.37, and the court imposed a restitution order in that amount.

As noted, in 2006, we affirmed the convictions. After our high court returned the case to us, the parties filed supplemental briefs in which they dispute only whether the instructional error was harmless beyond a reasonable doubt.

FACTS

1. Prosecution Evidence

Compton is a charter city governed by a city council. The Compton City Council consists of a mayor and four members, each representing a different district. The city council sets the policy and standards for the City and oversees the city manager, who is appointed by the mayor.

Bradley was first elected to the Compton City Council in 1991 and, from 1993 to June 30, 2001, served as the City's elected mayor. Rahh was elected to the city council in June 1999, the same month Bradley appointed Johnson city manager.

In July 1999, the city council unanimously passed a resolution authorizing the City to obtain corporate credit cards from specified issuers for the use of the city manager and city council members, including the mayor. The resolution established a policy for the use of the credit cards: Section 5 of the resolution expressly directed that “the corporate credit cards be utilized solely for approved City business related expenses.” (Italics added.) The resolution also provided, in section 6, that “each card holder is required to account for all expenses and will be held personally liable for any unauthorized charges.”

The credit card resolution was prepared by former City Controller Helen Tyler, at Johnson's request. The city controller's office routinely drafted resolutions for the city council concerning the budget, appropriations limit, auditors or purchases over $5,000.³ The city attorney reviewed the credit card resolution only for legality and form and was present at the council meeting when the resolution passed.

Prior to the resolution's passage, the City had a travel request procedure that provided its officials with advances to pay for lodging, meals and transportation on City-related trips. Under the City's written travel policy, air travel was limited to the lowest coach fare and meal expenses were limited to a $75 per diem ($15 for breakfast, $25 for lunch and $35 for dinner). Under the travel advance procedure, the city council approved the business trips, the city manager or his designee approved individual travel requests and the city controller verified that funding for the trip was available before the travel advance was processed. The travel advance check was made directly payable to the city official so that he or she could cash the check and use the funds to pay for the approved travel expenses. If a person overspent the itemized allowance, he or she could request reimbursement upon return by submitting receipts and going through the requisition and approval process. The City required receipts for travel only if the official sought to be reimbursed for additional travel expenditures following a trip.

After the city council adopted the credit card resolution, Johnson secured corporate credit cards for himself, the mayor and other council members pursuant to the resolution. However, the City continued its practice of providing travel advances to these officials.⁴

Normally, all incoming mail for the City was delivered to the city clerk's office for sorting and routing to the various municipal departments. When the first corporate credit card bills started arriving in October 1999, the bills were delivered to the city clerk's office. Out of curiosity, then-City Clerk Charles Davis opened a credit card statement addressed to Johnson and noticed a charge for a tuxedo rental. The tuxedo charge captured Davis's attention because it did not appear to be related to City business. Around this time, Tyler questioned Johnson about his ordering a second set of credit cards, and Johnson told her “he could do what he wanted to do.”

Tyler later became aware of credit card charges that Johnson had incurred while attending a Congressional Black Caucus (CBC) conference, in Washington, D.C. The statement included the tuxedo rental charge, along with charges for a rental car and hotel stay. The tuxedo rental appeared to Tyler to be a personal expense, and Tyler was aware that Johnson had received a travel advance for the rental car and hotel expenses. Tyler confronted Johnson about these items. Johnson told Tyler he discovered he needed a tuxedo while on the trip and decided to rent one. Johnson promised to write a check for the tuxedo rental charge but Tyler never received it. Soon afterwards, Tyler left her City post.

In November and December 1999, KCOP Channel 13, a local television station, submitted two requests to the city clerk for access to City credit card records under the California Public Records Act.⁵ Davis forwarded the requests to Johnson's office. Davis did not know if the City ever replied to the public records request.

After the KCOP public records requests and following a meeting with Bradley, Johnson directed the city clerk to send all credit card bills directly to the city manager's office. The stated rationale was to avoid distributing credit card numbers and information to the public. Davis ignored this directive and continued to route credit card statements to the city controller's office. The city controller's office, however, forwarded the credit card bills, unopened, to the city manager's office.

Upon receiving credit card bills, Johnson's special assistant, Linda Timmons–Iverson, submitted them to Johnson for review. At Johnson's direction, Timmons–Iverson then redacted the account number and purchase information from the bills and forwarded only a redacted copy of the statements to the city controller to process pay warrants for the bills. Timmons–Iverson kept the original unredacted credit card statements in a file in the city manager's office.

In May 2000, Johnson designated Tana McCoy (Bradley's sister), an assistant to the Compton City Council, as the person in charge of processing credit card payments for the mayor and other city council members. Timmons–Iverson continued to process payments for Johnson's City credit card. McCoy's duties included making travel arrangements, processing office payments and receiving mail for council members. McCoy's practice was to give the card holder a copy of his or her corporate credit card statement for review upon receipt. Afterwards, at Johnson's direction, McCoy redacted the expenditures section and all but four digits of the credit card number before sending a redacted copy of the statement to the city controller for authorization of payment. McCoy followed...