Stark v. the Superior Court of Sutter County

Citation52 Cal.4th 368,257 P.3d 41,128 Cal.Rptr.3d 611
Decision Date01 August 2011
Docket NumberNo. S145337.,S145337.
CourtUnited States State Supreme Court (California)
PartiesRobert E. STARK, Petitioner,v.The SUPERIOR COURT of Sutter County, Respondent;The People, Real Party in Interest.

OPINION TEXT STARTS HERE Rothschild, Wishek, Chastaine & Sands, Rothschild, Wishek & Sands, M. Bradley Wishek, Quin A. Denvir, Sacramento; and Marilyn Fisher for Petitioner.No appearance for Respondent.Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Manuel M. Medeiros, State Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Michal A. Canzoneri, Janet Neeley and Clifford E. Zall, Deputy Attorneys General, for Real Party in Interest.CORRIGAN, J.

[52 Cal.4th 376 , 257 P.3d 44]

This case involves serious allegations against Robert E. Stark, the auditor-controller of Sutter County. In that position, Stark made decisions about allocations and expenditures of public money. Stark had significant disagreements with the Sutter County Board of Supervisors (Board) and the County Administrative Office (CAO) regarding questions of public finance. The Sutter County District Attorney's Office claims that Stark violated statutes, county rules and Board resolutions detailing the requirements of his office. Stark asserts the matters at issue were complex transactions in which he exercised his professional judgment as auditor-controller and handled the matters as the law and governmental accounting rules required. A grand jury ultimately indicted Stark on 13 counts of violating Penal Code section 424 1 for acts and omissions involving public funds between 2003 and 2005. The grand jury additionally returned a 15–count accusation under Government Code section 3060 for willful or corrupt misconduct that could lead to Stark's removal from office. We granted review to resolve the following questions:

1. Does a violation of section 424 require intentional violation of a known legal duty or is it a general intent crime?

2. May a defendant move to set aside an indictment under section 995, subdivision (a)(1)(B), on the ground that grand jurors were misinstructed on the scienter required to establish an element of the charged offense?

3. May a public official be removed from office pursuant to Government Code section 3060 in the absence of proof of a purposeful refusal to follow the law in carrying out the duties of his or her office?

4. When a defendant moves to set aside an indictment or accusation on the ground that the district attorney's participation in the grand jury proceedings created a potential for bias or the appearance of a conflict of interest, must the defendant satisfy the requirements for disqualification set forth in section 1424?

We resolve these questions as follows:

1. At issue here are four provisions of section 424, all of which proscribe general intent offenses. Three of those provisions criminalize acting without authority or failing to act as required by law or legal duty. We conclude those offenses additionally require that the defendant knew, or was criminally negligent in failing to know, the legal requirements that governed the act or omission.

2. A claim of misinstruction on the mens rea of a crime may be challenged under section 995, subdivision (a)(1)(B). It raises the possibility that, as instructed, the grand jury may have indicted on less than reasonable or probable cause.

3. Based on the record in this case, we need not and do not decide the question of whether willful misconduct under Government Code section 3060 requires a knowing and purposeful refusal to follow the law. Stark does not disagree with the instruction on mental state given by the district attorney to this grand jury. Rather, he claims that later closing argument by the district attorney and accompanying PowerPoint slides invalidated the instruction on mental state, requiring that the accusation be set aside. We address this claim as to the district attorney's argument and PowerPoint slides and conclude that it is without merit.

4. In a motion to set aside an indictment or accusation, a defendant claiming that the district attorney suffered from a conflict of interest during the grand jury proceeding must establish that his right to due process was violated.

I. FACTUAL AND PROCEDURAL BACKGROUND

We begin with a general overview. The specific counts of the indictment and accusation that remain in this appeal will be described more thoroughly in the discussion section.

The Board consists of five elected members. Stark has served as the elected auditor-controller of Sutter County since 1985. His primary duty is to serve as the chief accounting officer for the county. Larry Combs was the county administrative officer during the period at issue here, with responsibility to manage the county for the Board. His duties included recommending and enforcing policy decisions, as well as recommending and managing the county budget.

On September 7, 2004, Combs presented a report to the Board entitled “ Analysis of Performance of Auditor–Controller & Recommendation for Action.” The report criticized Stark for actions dating back to 1988, and discussed recent “serious problems” regarding his performance, which are the basis for some of the allegations in the indictment and accusation. Specifically, the report mentioned the following: Stark filed the final budget for fiscal year 20032004 six and one-half months late; Stark acted unilaterally in amending the county budget even though state law reserves that authority to the Board; Stark claimed he had the authority to approve the rates some county departments were charging other county departments for services provided; Stark withheld overtime pay from the county's firefighters in January 2003 based on his interpretation of the county's memorandum of understanding (MOU); and, in the final budget for 20032004, which Stark belatedly filed in June 2004, Stark unilaterally transferred money from the county's general fund reserve to Sutter County Waterworks District No. 1 (Waterworks District).

In fall 2004, the Sutter County Grand Jury, in its oversight function, began an informal investigation of the auditor-controller's office. The Sutter County District Attorney's Office was not involved in these proceedings. On February 9, 2005, the last day of the informal investigation, Stark appeared at the request of the grand jury and answered questions.

A formal grand jury proceeding began on March 3, 2005, conducted with the assistance of Sutter County District Attorney Carl Adams. Multiple days of testimony concluded on May 3, 2005. Additionally, the grand jury received exculpatory material from Stark.

On May 4, 2005, District Attorney Adams instructed the grand jury on 13 counts alleging violations of various provisions of Penal Code section 424 and 15 counts alleging willful and corrupt misconduct under Government Code section 3060. The grand jury returned the indictment and accusation on all counts.2 The indictment and accusation, for the most part, were based on the same acts and omissions.

Stark moved to set aside the indictment and objected to the accusation. The superior court set aside one count of the indictment and two counts of the accusation.

In the Court of Appeal, Stark sought a writ of mandate or prohibition to review the trial court's order. When the Court of Appeal summarily denied the petition, Stark filed for review here. We granted the petition and transferred the matter back to the Court of Appeal with directions to issue an order to show cause why the requested relief should not be granted. On remand, the Court of Appeal issued the order to show cause. The Court of Appeal concluded that six counts of the indictment should have been set aside, and issued a peremptory writ of mandate to correct those errors. It concluded the trial court did not err in denying Stark's motion to set aside the remaining counts of the accusation.

As to the issues for which we granted review, the Court of Appeal ruled that, as to certain provisions of section 424, a defendant must know that his actions or omissions regarding public funds are without legal authority. As to the remaining counts for which that mental state is required, the Court of Appeal concluded that grand jurors “could reasonably entertain a strong suspicion” that Stark had such knowledge.

Regarding Stark's claims of instructional error as to section 424, the Court of Appeal concluded that section 995 does not provide a basis to set aside the indictment on the ground of instructional error. The court held that Stark's claim was cognizable only as a potential violation of his right to due process, and that Stark failed to make such a showing.

As to the mental state required to support an accusation under Government Code section 3060, the Court of Appeal concluded that [t]here must be willful behavior, and that behavior must amount to misconduct....” Because Stark identified no authority permitting a challenge to the accusation for instructional error, the Court of Appeal rejected his attack on the prosecutor's instructions and comments to the grand jury. Even assuming Stark could argue that the instructions violated his due process rights, he made no such showing.

Finally, the Court of Appeal rejected Stark's argument that the mere appearance of a conflict of interest by the Sutter County District Attorney's Office during the grand jury proceeding could support a section 995 motion to set aside the indictment. The Court of Appeal concluded that such a claim was not cognizable under that statute, but must be brought as a challenge to the indictment on due process grounds. The Court of Appeal concluded that Stark's claim regarding the district attorney's office did not...

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