Stark v. Superior Court

• Decision Date: 15 June 2006
• Docket Number: No. C051075.,No. C051073.,No. C051074.,C051073.,C051074.,C051075.
• Citation: 140 Cal.App.4th 567,44 Cal.Rptr.3d 575
• Court: California Court of Appeals Court of Appeals
• Parties: Robert E. STARK, Petitioner, v. The SUPERIOR COURT of Sutter County, Respondent; The People, Real Party in Interest. Ronda G. Putnam, Petitioner, v. The Superior Court of Sutter County, Respondent; The People, Real Party in Interest.

44 Cal.Rptr.3d 575

140 Cal.App.4th 567

Robert E. STARK, Petitioner, v. The SUPERIOR COURT of Sutter County, Respondent;

The People, Real Party in Interest.

Ronda G. Putnam, Petitioner, v. The Superior Court of Sutter County, Respondent;

The People, Real Party in Interest.

No. C051073.

No. C051074.

No. C051075.

Court of Appeal, Third District.

June 15, 2006.

Rothschild, Wishek, Chastaine & Sands, M. Bradley Wishek, Sacramento; Marilyn Fisher, for Petitioner Robert E. Stark.

Blackmon & Associates, Clyde M. Blackmon, Sacramento, Melinda J. Nye; Marilyn Fisher, for Petitioner Ronda Putman.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor, Mary Jo Graves, Senior Assistant Attorney General, Michael A. Canzoneri and Janet Neeley, Supervising Deputies Attorney General, Clifford E. Zall, Deputy Attorney General, for Real Party in Interest.

ROBIE, J.

This writ proceeding arises out of a turf battle between some of the elected officials in Sutter County (the County) over accounting matters. That battle has resulted in a 13-count criminal indictment against the auditor-controller of the County, Robert E. Stark, as well as accusations under Government Code section 3060 against both Stark and his assistant, Ronda G. Putman, seeking to remove them from office for willful misconduct.

Stark and Putman moved to set aside the grand jury's indictment and accusations on various grounds. For the most part, the superior court denied those motions. As will be shown, we conclude the superior court erred when it refused to set aside some of the criminal charges against Stark and the accusation against Putman. Otherwise, however, the superior court was correct. We will issue a peremptory writ of mandate to correct the court's errors and otherwise allow the matter to proceed against Stark.

FACTUAL AND PROCEDURAL BACKGROUND

What follows is a general overview of the factual and procedural background of this writ proceeding. Further detail of the underlying facts is set forth below in the discussion section.¹ Stark has been the auditor-controller of the County since 1985.

In the fall of 2004, Larry Combs, the county administrative officer (who is appointed by the board of supervisors to manage the County), became aware that Stark was "making arbitrary changes to policies, making some accounting decisions that did not make sense and interfering with the operations of the county." As a result, Combs prepared a report to the board entitled, "Analysis of Performance of Auditor-Controller & Recommendation for Action," which he presented to the board on September 7, 2004. That report alleged that "serious problems exist with respect to [Stark's] job performance." Among those problems were the following: (1) Stark filed the final budget for fiscal year 2003-2004 in June 2004, six and one-half months late; (2) Stark believed he had the authority to unilaterally amend the County budget, when state law limits that authority to the board of supervisors; (3) Stark was asserting the authority to approve the rates some County departments, such as the information technology (IT) department, were charging other County departments to recover the cost of services provided; (4) in January 2003, Stark withheld overtime pay from the County's firefighters based on an erroneous interpretation of the County's memorandum of understanding (MOU) with them; and (5) in the final budget for 2003-2004, which Stark belatedly filed in June 2004, Stark unilaterally transferred money from the County's general fund reserve to the Sutter County Waterworks District # 1.

As a result of Combs's report, the board of supervisors took various actions with respect to Stark. One such action related to the setting of rates for the IT department. The IT department gets a small amount of its revenue by providing services for outside agencies, but gets the majority from services provided to other county departments, for which the department is paid through inter-fund charges (transfers from one County fund to another). Before September 2004, the billing rate that the IT department charged to other county departments for its services was set through "an informal process between the department, [Stark,] and [the county administrative officer's] office." Then, Stark began asserting the authority to disapprove the billing rate. As a result, at Combs's request, the board delegated to Combs the power to set the IT department's billing rate.

On March 3, 2005, the grand jury began an investigation into Stark's conduct. The investigation continued through early May. On May 4, the grand jury returned a 13-count criminal indictment against Stark (case No. CRF051001). The grand jury also returned a 15-count accusation against Stark (case No. CRMS051031) and a two-count accusation against Putman (case No. CRMS051030) under Government Code section 3060 for willful misconduct in office. The charges in the indictment and information related to some of the incidents raised in Combs's report to the board of supervisors in September 2004, as well as other incidents (all of which will be further detailed below).

In July 2005, Stark and Putman filed motions to set aside the indictment and the accusations. In a consolidated memorandum of points and authorities, they argued, among other things, that the evidence presented to the grand jury was insufficient as a matter of law to support the indictment and the accusations because there was no evidence they purposefully refused to follow the law.

Following a hearing in October 2005, the superior court set aside the first count of the indictment and counts two and thirteen of the accusation against Stark, but let the remaining charges stand. Stark and Putman sought review in this court by filing virtually identical petitions for writs of mandate or prohibition. (Stark filed two petitions: one relating to the criminal indictment and one relating to the accusation against him.) On November 23, 2005, this court summarily denied all three petitions.

Stark and Putman petitioned for review in the Supreme Court. On February 22, 2006, the court granted their petitions, consolidated the three cases, and transferred the matter back to this court "with directions to vacate its order denying petitions for mandate and prohibition and to issue an order directing real party in interest to show cause before that court why the relief sought in the petition should not be granted."

This court issued the orders to show cause as directed on March 8, 2006. By stipulation, on March 21 we consolidated the three petitions and agreed to decide "[t]he matters raised in the petitions . . . upon the briefs previously filed in the superior court and the record of those proceedings." Accordingly, we now turn to the issues raised in Stark's and Putman's motions to set aside the indictment and the accusation.

DISCUSSION

I The Indictment

We begin by addressing Stark's arguments challenging the criminal indictment against him.²

A Standard Of Review

On a criminal defendant's motion, the trial court must set aside an indictment when "the defendant has been indicted without reasonable or probable cause." (Pen.Code, § 995, subd. (a)(1)(B).) "Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citation.] An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." (Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 183-184, 281 P.2d 250.) "`Reasonable and probable cause' may exist although there may be some room for doubt." (People v. Nagle (1944) 25 Cal.2d 216, 222, 153 P.2d 344.)

On a motion to set aside an indictment, "`the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the [grand jury] could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.'" (People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664, quoting People v. Jablon (1957) 153 Cal.App.2d 456, 459, 314 P.2d 824.)

"A reviewing court may not substitute its judgment for that of the grand jury or magistrate in determining the sufficiency of the evidence and must draw all reasonable inferences in support of the indictment or information." (People v. Backus (1979) 23 Cal.3d 360, 391, 152 Cal.Rptr. 710, 590 P.2d 837.)

B Penal Code Section 424

The 13-count indictment alleges that Stark violated five of seven subdivisions of Penal Code³ section 424, subdivision (a). Those provisions are as follows:

"(a) Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:

"1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another; or,

"2. Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law; or,

"3. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same; or,

"[¶] . . . [¶]

"6. Willfully omits to transfer the same, when transfer is required by law; or,

"7. Willfully omits or refuses to pay over to any officer or person authorized by law to receive the same, any money received by him or her under any duty imposed by law so to pay over the same; —

"Is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state."⁴

...