People v. Hawes

• Decision Date: 19 March 1982
• Docket Number: Cr. 11245
• Citation: 181 Cal.Rptr. 456,129 Cal.App.3d 930
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William HAWES, Defendant and Appellant.

Page 456

181 Cal.Rptr. 456

129 Cal.App.3d 930

The PEOPLE, Plaintiff and Respondent, v. William HAWES, Defendant and Appellant.

Cr. 11245.

Court of Appeal, Third District, California.

March 19, 1982.

Rehearing Denied April 13, 1982.

Hearing Denied June 9, 1982.

Barr, Minoletti & Newlan, John D. Barr, Redding, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., W. Scott Thorpe, Nancy Sweet and John R. Duree, Jr., Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

Defendant was the elected District Attorney of Shasta County. In an accusation presented by the grand jury on July 11, 1980, he was charged with seven counts of willful and corrupt misconduct in office. A jury found defendant guilty of one count of willful misconduct, acquitted him of three other counts and was unable to arrive at a verdict on the remaining three counts. Defendant appeals from the judgment removing him from office as district attorney. The People's motion to dismiss the appeal will be denied and we shall reverse the judgment of removal.

I

The People have moved to dismiss the appeal on the ground appeal from a judgment of removal (Gov. Code, § 3072) is not authorized by statute.

The statutory provisions governing removal of local officers other than by impeachment, i.e., by proceedings on an accusation, are found in Government Code sections 3060-3074 (all further statutory references are to sections of the Gov. Code unless otherwise indicated). These provisions originated in the Statutes of 1851 (Stats.1851, Second Ex.Sess., ch. 29, §§ 70-83, pp. 219-220) and were later incorporated in the Penal Code when it was enacted in 1872 (former Pen. Code, §§ 758-772). Former Penal Code section 770 (derived from § 82 of ch. 29 of Stats.1851, Second Ex.Sess.) provided for appeal to the Supreme Court of a judgment of removal. The appeal provision formerly found in Penal Code section 770 was not reenacted when, in 1943, removal proceedings were incorporated into the newly enacted Government Code (Stats.1943, ch. 134, pp. 978-979, 1010). This omission is the basis for the People's argument that the Legislature intended to eliminate post-judgment review of removal proceedings.

Long before 1943 former Penal Code section 770 had ceased to be of any effect. It was declared unconstitutional in 1914 as an unauthorized legislative attempt to enlarge the appellate jurisdiction of the Supreme Court beyond the express limits laid down in the Constitution. (People v. McKamy (1914) 168 Cal. 531, 535, 143 P. 752.) In 1928 article VI, section 4b, was added to the California Constitution conferring upon the then District Courts of Appeal appellate jurisdiction over removal proceedings. ¹ Former Penal Code section 770, long moribund, was not revived by the addition of article VI, section 4b (see People v. McKamy, supra, 168 Cal. at p. 535, 143 P. 752). The constitutional grant of appellate jurisdiction, however, was self-executing, not dependent for its vitality on the existence of implementing legislation. (Byers v. Smith (1935) 4 Cal.2d 209, 213-214, 47 P.2d 705; see e.g., People v. Becker (1952) 108 Cal.App.2d 764, 239 P.2d 898.)

In 1966 the voters repealed article VI, section 4b, and adopted a greatly simplified provision governing appellate jurisdiction: "The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute.

"Superior courts have appellate jurisdiction in causes prescribed by statute that arise in municipal and justice courts in their counties.

"The Legislature may permit appellate courts to take evidence and make findings of fact when jury trial is waived or not a matter of right." (Cal.Const., art. VI, § 11.)

The constitutional revision of which article VI, section 11 was a part appeared on the ballot as Proposition 1-a at the general election of November 8, 1966. As an aid to the interpretation of article VI, section 11, we have examined the ballot summary, arguments and analysis concerning Proposition 1-a submitted to the electors in advance of the general election. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246, 149 Cal.Rptr. 239, 583 P.2d 1281.)

Proposition 1-a was the product of the Constitution Revision Commission which was created to recommend revision of California's Constitution. Proposition 1-a represented the first phase of the Commission's work. It covered approximately one-third of the existing Constitution, reduced that portion from 22,000 to 6,000 words and undertook to render it into modern, concise and easily understandable language. The detailed analysis of the Legislative Counsel appearing in the voter pamphlet (Ballot Pamp., Proposed Amends. to Cal.Const. with arguments to voters, Gen.Elec. (Nov. 8, 1966) p. 1) describes several "major changes" which would be effected by the proposed revision of the Constitution. No mention is made there or in the ballot arguments in favor of and against Proposition 1-a of the proposed change to the judicial article concerning appellate jurisdiction. We perceive no design in the information supplied the electorate concerning article VI, section 11 to alter the scope of appellate jurisdiction over removal proceedings as conferred by its predecessor, article VI, section 4b. Furthermore the language of article VI, section 11, reveals no intent to diminish the compass of appellate jurisdiction in respect to removal proceedings and we are satisfied that none was intended. Elimination of express mention of removal proceedings from the 1966 revision had no substantive effect as removal proceedings are clearly encompassed within the general language of the 1966 revision.

Under article VI, section 11, except where judgment of death has been pronounced, the Court of Appeal has appellate jurisdiction when superior courts have original jurisdiction. The superior court has original jurisdiction over the trial of an accusation (§ 3063). We conclude jurisdiction over this appeal is authorized by California Constitution, article VI, section 11. That provision is self-executing (Byers v. Smith, supra, 4 Cal.2d at pp. 213-214, 47 P.2d 705).

In addition to constitutional jurisdiction, there is statutory authorization for the defendant's appeal. Section 3072 provides, as did its predecessor, that "upon a conviction" in a removal proceeding, the court "shall pronounce judgment" that the defendant be removed from office. Penal Code section 1237 provides, as it has since 1872, that an appeal may be taken by a defendant "from a final judgment of conviction." We acknowledge that none of the decisions which have dealt with appellate jurisdiction of removal proceedings has discussed Penal Code section 1237. However, prior to 1928, reliance on Penal Code section 1237 as a source of appellate jurisdiction over removal proceedings would have been subject to the same constitutional infirmity as reliance on former Penal Code section 770 as an unauthorized attempt to expand appellate jurisdiction beyond the limits plainly spelled out by the Constitution. (See People v. McKamy, supra, 168 Cal. at p. 535, 143 P. 752.) Moreover between 1928 and 1966, a self-executing provision of the Constitution specifically provided for appeals from removal actions and no statutory authority was required (Byers v. Smith, supra, at pp. 213-214, 47 P.2d 705).

As matters now stand, the Constitution, without more, confers appellate jurisdiction upon the Court of Appeal over judgments of removal under section 3072. In addition Penal Code section 1237 authorizes appeal by defendant of such judgments to the Court of Appeal. We turn to the merits of defendant's appeal.

II.

The accusation charges seven instances of misconduct, three of which allege intoxication during working hours. The remaining counts allege failure to make a scheduled court appearance (one count), acting from corrupt and personal motives in requesting excessive bail in a pending criminal case (one count), and authorizing the filing of criminal charges by a non-attorney (two counts). The jury found defendant guilty only of count III which charges: "That on or about January or February 1979 while defendant was acting as District Attorney of Shasta County, defendant committed wilful ... misconduct in office in that his conduct fell below the standard of decency rightfully expected of a public official, to wit, he became intoxicated during working hours while in Weaverville, California, in the course of the preparation of the prosecution of Jess Cannon."

Defendant contends he is not subject to removal for intoxication during working hours under section 3060 which deals with willful or corrupt misconduct in office. He argues that intoxication by a county or city officer while in the discharge or neglect of his duties is governed by section 3001, a misdemeanor for which the penalty upon conviction is forfeiture of office. Defendant relies on the rule that a specific statutory provision controls a general one even where the general one standing alone would be broad enough to include the subject matter of the specific statute (In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593). The Williamson rule applies even though the general statute contains elements not found within the specific statute if a violation of the latter necessarily or commonly results in a violation of the former and the overall statutory context indicates a legislative intent that the specific provision shall control the general. (People v. Jenkins (1980) 28 Cal.3d 494, 501-505, 170 Cal.Rptr. 1, 620 P.2d 587.) Defendant argues that by making it the subject of a specific statute, the Legislature evinced an intent that intoxication by a...