People v. Lopez

• Decision Date: 24 January 1997
• Docket Number: No. C020037,C020037
• Citation: 60 Cal.Rptr.2d 511,52 Cal.App.4th 233
• Parties: , 97 Cal. Daily Op. Serv. 620, 97 Daily Journal D.A.R. 935 The PEOPLE, Plaintiff and Appellant, v. Francisco Olmos LOPEZ, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 511

60 Cal.Rptr.2d 511

52 Cal.App.4th 233, 97 Cal. Daily Op. Serv. 620,

97 Daily Journal D.A.R. 935

The PEOPLE, Plaintiff and Appellant, v. Francisco Olmos LOPEZ, Defendant and Respondent.

No. C020037.

Court of Appeal, Third District, California.

Jan. 24, 1997.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Robert E. Venturi and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Appellant.

Mark E. Cutler and Melissa K. Nappan, under appointment by the Court of Appeal, for Defendant and Respondent.

SPARKS, Associate Justice.

Except as provided in Penal Code sections 799 and 800, a prosecution for an offense punishable by imprisonment in the state prison must "be commenced within three The second major issue relates to who bears the burden of proof at a special, pretrial hearing on defendant's motion to dismiss the indictment on the ground that the statute of limitations has run. We conclude that the defendant bears the burden at this hearing to prove that the statute has run as a matter of law.

                years after commission of the offense." 1  (Pen.Code, § 801.)   This general statute of limitations is subject, however, to a discovery provision for specified crimes.  Thus, for offenses involving described misconduct in office by a public employee, the statute of limitations "does not commence to run until discovery of [such] an offense."  (Pen.Code, § 803, subd.  (c).)  In People v. Swinney (1975) 46 Cal.App.3d 332, 120 Cal.Rptr. 148 (disapproved on another point in People v. Zamora (1976) 18 Cal.3d 538, 564, fn. 26, 134 Cal.Rptr. 784, 557 P.2d 75), construing an earlier version of the limitations statute, we held that the statute starts to run "when the crime is discovered by either the victim or the responsible law enforcement authorities."  (46 Cal.App.3d at p. 344, 120 Cal.Rptr. 148.)   One of the central questions in this appeal relates to who is the victim for purposes of the statute of limitations when the crimes involve misappropriation of public funds and perjury for certifying false official payment invoices.  We hold that the victim is a public employee occupying a supervisorial position who has the responsibility to oversee the fiscal affairs of the entity and thus has a legal duty to report a suspected offense to law enforcement agencies
                

Defendant Francisco Olmos Lopez was indicted on two counts of misappropriation of public funds (Pen.Code, § 424), six counts of perjury (Pen.Code, § 118) and one count of presenting a false claim to a state board (Pen.Code, § 72). The count for presenting a false claim was later dismissed on the motion of the prosecution.

Defendant moved to dismiss the indictment on the ground that the prosecution was barred by the statute of limitations. The trial court granted the motion and the People appeal. We hold that defendant failed to carry his burden and therefore shall reverse the order of dismissal.

PROCEDURAL HISTORY

On April 22, 1994, an indictment was filed against defendant charging the nine felonies recounted earlier. Count one charged the misappropriation of public funds between August 1, 1987, and June 30, 1988. ² It alleged that defendant, while charged with the transfer and disbursement of public moneys, appropriated those funds without authority of law to his own use or the use of Tlaloc Family Health Center. Count two charged the same offense and alleged the offense occurred between July 1, 1988, and June 30, 1989, in the same manner as count one. Counts three through eight charged the crime of perjury alleged to have been committed on January 7, 1989, January 29, 1989 The indictment further alleged that these offenses "were discovered within in the meaning of Penal Code section 803(c)(1) on or about July 17, 1992, when Special Agent Mark Olenslager of the California Department of Justice interviewed Belen Abeyta in regards to grant applications submitted to the California Department of Health Services on behalf of the Tlaloc Family Health Center; that the Department of Justice had no knowledge, actual or constructive, prior to the date of 'discovery' of the offenses charged herein, that is, on or about July 17, 1992; and, that the reason why the offenses were not 'discovered' earlier is because there had been no disclosure by any persons within the Department of Health Services that [defendant] was involved with the submission of fraudulent grant applications. Therefore, this action has been timely commenced."

                January 31, 1989, February 29, 1989, April 5, 1989, and May 1, 1989, respectively.  Each of these counts alleged that defendant certified as true in official records material matters he knew to be false, namely in Department of Health Services documents entitled "Prospective Payment Invoice."   Count nine involved the alleged presentation of a false claim to the State Personnel Board in violation of Penal Code section 72, and as we have noted was dismissed on the motion of the prosecution
                

After pleading not guilty to these offenses, defendant moved to set aside the indictment on the grounds there was no probable cause to indict him (Pen.Code, § 995), and to dismiss the indictment because it was barred by the statute of limitations. The court denied the motion to set aside the indictment under Penal Code section 995 and then set an evidentiary hearing on the statute of limitations motion. Following the hearing, the trial court granted defendant's motion to dismiss the indictment on the ground that the statute of limitations had run. This appeal by the People followed. (Pen.Code, § 1238, subd. (a)(8).)

THE GRANTS-IN-AID FOR CLINICS PROGRAM

This case involves alleged improprieties in the grants-in-aid for clinics program conducted by the Department of Health Services (Department). As explained to the grand jury by a health program manager for the Department, "[t]he grants in aid program was a program with approximately a million dollars that funded primary care clinics throughout the State of California." The program was initially introduced in the Legislature, the manager continued, as "AB 1317 I think is what it was called, grants in aid legislation then subsequently recodified into another bill which, I think, was SB 1117, the primary care legislation."

Senate Bill No. 1117 (1983-1984 Reg.Sess.) became chapter 1294 of the Statutes of 1983 and among other things added part 6 to division 1 of the Health and Safety Code. (Stats.1983, ch. 1294, § 3, p. 5164.) Chapter 5 of that part dealt with "Grants-In-Aid for Clinics." There the Legislature declared that "there are approximately 300 community clinics and free clinics which provide primary health care at low cost for a significant portion of the medically underserved population." (Former Health & Saf.Code, § 1187, subd. (a).) "Increasingly large caseloads, the debilitating effects of inflation on purchased goods and services, and a lack of financial resources," the Legislature further found, "are forcing many community and free clinics to curtail services needed in their communities." (Former Health & Saf.Code, § 1187, subd. (c).) "Recognizing the contribution of community and free clinics to the health care of Californians and the contribution of such clinics to lowering the costs of health care, it is in the interest of the people of this state to ensure continuation of clinic programs by providing necessary funding." (Former Health & Saf.Code, § 1187, subd. (d).) In aid of these findings, the Legislature directed that "[t]he [Department of Health Services] shall conduct a program of grants-in-aid for the followings purposes: [p] (a) To assist in stabilizing the health care operations of community clinics and free clinics which provide a wide range of primary health care services. [p] (b) To fund innovative and creative programs of such clinics designed to provide a high quality of health services at minimum cost. [p] ... Grants authorized pursuant to this chapter shall be limited in purpose to This case involves the claimed illegal funding of a start-up clinic in Sacramento called Tlaloc Family Health Clinic (Tlaloc).

defraying operating expenses of the recipient clinic, including personnel costs, and for technical assistance provided to the recipient. Grants shall not be made or used for purchase of equipment, facility renovations, or purchase of land or buildings...." (Former Health & Saf.Code, § 1187.1.)

EVIDENCE BEFORE THE GRAND JURY

At all relevant times defendant was employed as an analyst in the Primary Health Care Services Branch of the Department. ³ He was responsible for farm worker projects and grant-in-aid and rural health programs. As the Attorney General notes, "[t]he People's theory of the case, as presented to the grand jury, was that [defendant], by means of subterfuge, submitted grant proposals on behalf of the Tlaloc Family Health Center in early 1988 and 1989 under the auspices of the AB 1317 funding program, a program which [defendant] was then administering. The People theorized that [defendant], because of his position as the AB 1317 program administrator, facilitated the approval process within the Department of Health Services in order to get start-up money for the Tlaloc clinic. AB 1317 funding is specially earmarked for clinic 'stabilization,' not start-up."

This theory was explained to the grand jury by the deputy attorney general before witnesses were called. "What I intend to do is present to you several witnesses, approximately 14 or 15 witnesses, who are going to testify about certain contracts or grant applications that were submitted to two different departments of the State of California. [p] The first department is the Department of Health Services, particularly Primary Health Care Services Branch and specifically the Rural Health Care Services Division within that branch. [p] What this case basically involves is a state employee named Francisco Lopez [defe...