Petition — Sperl v. California

Supreme Court brief1976

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IN THE

Supreme Court of the United States

1976

DP CLPRK

_— Sn me

No 85-1839

TIMOTHY SPERL,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI.

ROBERT PAYSON,

Suite 400, Clubview Building,

10203 Santa Monica Boulevard,

Los Angeles, Calif. 90067,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Summary of Charges on Which Petitioner Was Con-

Pe stittnnsins tdlics cd cseninontapiedieg attain deaeatanncaasitions

DOL RLY LIOR, ERT SIRE

Petitioner’s Contentions Were Properly Raised in the

ET MIDS. sandiiekecnniccidsdcpeussnindion PAE AE Ge Se OO

SUITE saiisléleliuissisiadinieimenigstasbgntsbonsakcibasiaasuniinadiiedasiididoudiiidieds

The Motion to Suppress Evidence Should Have

I lili acetal canals temeeieliadile

In Applying Penal Code Section 424(1) in This

Case, the Court Interpreted the Statute so That

It Is Void for Vagueness (Count IIT) ..............

Ill

The Conviction on Count III Was the Result of

a Discriminatory Prosecution and Was There-

Pe I i cccnsticcincsnsicnioepescdiondebenntilinia

A. Supervisor Hayes Could Have Been

Charged With the Same Offense Under an

Aiding and Abetting Theory ....................

B. Supervisor Hayes Could Have Been

Charged With Violating Section 424(1)

on the Theory That He Was a Co-Con-

RI sitnctictidlciaptieicasegebccintmininnagnesinnti

C. Failure to Prosecute Supervisor Hayes

Violated Appellant’s Right to Equal Pro-

IT i iil letras

I a ge TA Ai = AO a ee Oe EF BO RIA ER AD

Appendix. Opinion of the Court of Appeal ..App. p. 1

ii.

TABLE OF AUTHORITIES CITED

Cases Page

££, Bee & |. Femme 10

Chapman v. United States, 365 U.S. 610 (1961) .. 11

Grayned v. City of Rockford, 408 U.S. 102 ........ 13, 14

Ee SS SS Oe . eee 10

McCallop v. Carberry, 1 Cal.3d 903 ~.......2........... 9

Palko v. Connecticut, 302 U.S. 139 _uw. ee. 10

Papachristou v. City of Jacksonville, 405 U.S. 156

ssieiaebeaaniadetasniasisildebatalaia denntiniaunidaiaiusinnielaiaiiladd 13

Pelton Motors v. Superior Court, 120 Cal.App.2d

IEEE. . schnhinederaeestiiunsesintgann ieiddilatia idiicetcalacasiekacctnaaaianiaeaasidioas 9

People v. Belenger, 222 Cal.App.2d 159 ................ 16

People v. Cahan, 44 Cal.Zd 434 0.00000... 10

People v. Gray, 254 Cal.App.2d 256 ............ 18, 19

. Se See bE | eee 11

People v. Villa, 156 Cal.App.2d 128 ................ 16

People v. Winters, 171 Cal.App.2d Supp. 837 .... 19

Bormemip ©. FUROR, DS CA FOO ccccescccsscccsticccucice 17

Sniadach v. Family Finance Corp., 395 U.S. 337 .. 9

Snowden v. Hughes, 321 U.S. 1 ...0.02002002....... 18, 19

Southern Pacific v. Superior Court, 15 Cal.2d 206

sseianinslasnenaoaheielealdeipiicdalinaiia cialis diadimabiiaialans 8

Stoner v. California, 376 U.S. 483 (1964) ...... 11

Two Guys From Harrison-Allentown v. McGinley,

Ee CN SHEE - scrictiinisntiebnateineinesbantinmiasaaetneidabies 18

United States v. Blok, 188 F.2d 1019 2.0.0.0... 11

United States v. Robinson, 311 F.Supp. 1063 .... 18

United States v. Steele, 461 F.2d 1148 ................. 19

ili.

Page

Vandenburg v. Superior Court, 8 Cal.App.3d 1048

PeCTE Ra 8 he — BASE AO,

Yick Wo v. Hopkins, 118 U.S. 356 ....17, 18, 20

Miscellaneous

Los Angeles County Marshal’s Manual of Rules

and Regulations, Sec. 101.5 .............c.ccecceccsssccoscese 7

Statutes

California Constitution, Art. I, Sec. 21 ........ 17, 20

California Constitution, Art. I, Sec. 22 .......... 17, 20

California Penal Code, Sec. 31. ............................ 16

California Penal Code, Sec. 424 -...0...00.c 15

California Penal Code, Sec. 424(1) ........ 2, 4 $, 12

ila el cll ra el cele > Om Oe Ute OO

California Penal Code, Sec. 424(3) 2.000.000.0000... a

California Penal Code, Sec. 487.1 ...... Sided a

California Penal Code, Sec. 504 .......................... 15

California Penal Code, Sec. 514 ........................... 15

California Penal Code, Sec. 1538.5 .0.000000.ccee.. 5

Government Code, Sec. 6200 .....0........c cece. 2, 4

Government Code, Sec. 31114(3) -.....cccccceeeee. 3

Government Code, Sec. 72643 .............................. 7

United States Code, Title 28, Sec. 1257(3) ........ 2

United States Constitution, Fourth Amendment ..

sciatica uicmiaieubadaiighadiadecdihdcsepiahinesedidedbaieanieddelisamminiiianiada > o ©

United States Constitution, Fourteenth Amendment

ilasiiaiachs Neesassisiastialainenaaiasaadieiganaaid 3, 5, 10, 16, 17, 19, 20

Textbooks

1 Witkin, California Crimes (1963), Sec. 44, p. 47

PUN re STRIP ORE DE Te SRT et oe 16

BU peddeesecteescetenswdotneeleniineesnsdibaneisevtie -odsntumennanitibeinaioansintisie 17

IN THE

Supreme Court of the United States

October Term, 1975

RSS eer

TIMOTHY SPERL,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI.

Petitioner’s conviction by the Superior Court of the

County of Los Angeles was affirmed in a published

Opinion of the California Court of Appeal, Second

Appellate District, Division Five. That Opinion is re-

ported in 54 Cal.App.3d at 640.

Judgment was imposed by the Los Angeles Superior

Court on November 8, 1974. The Court of Appeal

affirmed on January 21, 1976, and denied a Petition

for Rehearing on February 19, 1976. The Opinion

of the Court of Appeal is voluminous. Accordingly,

it will be separately presented. A copy of the Order

denying the Petition for Rehearing is appended to this

Petition. The California Supreme Court denied a hearing

on March 24, 1976. The Court of Appeal issued

its Remittitur on April 21, 1976.

This Court has jurisdiction over this case by reason

of the provisions of 28 U.S.C. 1257(3). Petitioner’s

conviction was affirmed by the highest Court of the

State of California required to hear Petitioner’s appeal,

and the California Supreme Court, which had discretion-

ary power to hear Petitioner’s appeal, refused to grant

a hearing.

Summary of Charges on Which Petitioner

Was Convicted.

Los Angeles County Marshal (Petitioner) was con-

victed of the following charges:

A. Count I, violation of California Penal Code

Section 424, subdivision 3 (knowingly keeping false

accounts relating to the receipt of public monies). This

related to the keeping of time records that did not

accurately reflect the time spent by the Marshal’s depu-

ties in legislative advocate activities in the state capitol;

B. In Count III Petitioner was convicted of violating

California Penal Code Section 424, subdivision | (mis-

appropriation of public monies) arising from the fur-

nishing of excessive courtesy transportation to a state

legislator;

C. Petitioner was convicted in Count V of vioiating

California Penal Code Section 424, subdivision 3 (know-

ingly keeping false accounts or making false entries

relating to the receipt of public monies) resulting

from an alleged concealment of the time deputies spent

assisting said state legislator in an election campaign;

D. In Count VII Petitioner was convicted of vio-

lating Government Code Section 6200 (secretion of

—

public records by an officer custodian) resulting from

segregation and subsequent disappearance of radio logs

relating to transportation furnished to said state legisla-

tor;

E. In Count IX Petitioner was convicted of violating

Government Code Section 31114, subdivision 3 (fur-

nishing special and secret information for the purpose

of improving or injuring the prospects of persons to

be examined under a county civil service system ).

Various records of the Marshal’s department were

introduced into evidence at trial in connection with

these charges. These records had been furnished to

the District Attorney pursuant to subpoenas served

upon persons in the Marshal’s department other than

the Marshal himself. These records were furnished

to the District Attorney by the persons upon whom

the subpoenas were served, and the Marshal (Peti-

tioner) had no opportunity to move to quash the

subpoenas prior to the time that these records were

delivered to the District Attorney pursuant to the sub-

poenas served upon the Marshal’s subordinates.

Questions Presented.

The initial question presented by this Petition is

whether there was a violation of Petitioner’s Fourth

Amendment rights to be free from unreasonable search

and seizure and Fourteenth Amendment rights to due

process of law by reason of the failure of these sub-

poenas duces tecum to be served upon the person

who had control of the records of the Marshal’s depart-

ment; to wit, the Marshal.

—

The Los Angeles County Marshal had authcrity

to offer courtesy transportation to other public officials.

It was found that in providing such transportation

to a state legislator, the Marshal exceeded his authority,

by virtue of the frequency with which such transporta-

tion was provided. Based on the above findings, the

Marshal was convicted in Count III of an indictment

of violating California Penal Code Section 424(1),

which prohibits misappropriation of public monies by

a public official. Is California Penal Code Section

424(1), which is a statute prohibiting misappropriation

of public monies, void for vagueness as applied to

a Marshal who is found to have provided excessive

transportation services to a state legislator?

Under California law, a person who aids and abets

another in the commission of a crime is equally guilty

as a principal along with the actual perpetrator of

the crime. The legislator to whom transportation was

provided was not prosecuted for any crime, and at

the time the Marshal was indicted, the legislator was

serving as a member of the five-man governing body

of the County of Los Angeles; to wit, its Board of

Supervisors.

Is failure to prosecute the legislator (then Assembly-

man Hayes) for whom the transportation was provided

unconstitutional discriminatory prosecution?

Petitioner was convicted on Count VII of violating

Government Code Section 6200 (destroying or secreting

public records) by secreting radio logs. Was it a viola-

tion of due process to convict him of secreting such

— =

material, of which he was lawful custodian, without

a subpoena duces tecum directed to him or other

demand that he produce such material?

Petitioner’s Contentions Were Properly Raised

in the State Courts.

The contention that it was a violation of Petitioner's

Fourth and Fourteenth Amendment rights for the sub-

poenas duces tecum to have been served on persons

other than the Marshal himself was made in a motion

to suppress evidence pursuant to California Penal Code

Section 1538.5, prior to trial |[R.T. 5-6; C.T. 67-

71, 119, 120-141, 145], and on appeal. (App. Op.

Br. pp. 31-36.)

The contention that California Penal Code Section

424(1) is void for vagueness as applied to a Marshal

who is found to have furnished excessive transportation

services to a state legislator was made at pages 58-

60 of Appellant's Opening Brief to the California

Court of Appeal.

The contention that Petitioner’s convictions were

the result of discriminatory prosecution was made

for the first time on a motion for new trial and

such contention was renewed to the Court of Appeal.

[R.T. 3251, 3253; App. Op. Br. pp. 39-45, 63.]

The Court of Appeal held that Penal Code Section

424(1) was not unconstitutionally vague. (Mimeo

Opinion, pp. 24-25.)

The Court of Appeal ruled that the contention of

discriminatory prosecution was not timely made because

not made until the time of the motion for new trial.

(Mimeo Opinion, pp. 17-19.)

The Court ruled that it was not necessary to serve

the subpoenas duces tecum on the Marshal personaily.

(Mimeo Opinion, pp. 13-14.)

—

ARGUMENT.

The Motion to Suppress Evidence Should Have

Been Granted.

Prior to trial, Appellant moved to suppress as evi-

dence records of the Marshal’s office, including but

not limited to time books, payroll cards, monthly per-

sonnel time sheets, radio logs and transportation re-

quests. The motion was argued on the basis of the

points and authorities submitted to the trial court

and the testimony of Joe Medina, the chief investigator

in the case. [R.T. 5-6; C.T. 67-71, 119. 120-141,

145. ]

Mr. Medina testified that Grand Jury subpoenas

were served on Assistant Marshal Cox, Captain Perkins,

Ms. Scotton, Captain Prater,* Inspector Castaneda

and Ms. DelGado on November 12. [R.T. 9-11.]

The Marshal was not in his office on that date. [R.T.

8.| During that day, Mr. Medina received the two

time books from Ms. Scotton and monthly personnel

rosters, daily absence reports and overtime certification

documents from Asst. Marshal Cox. [R.T. 12-14.]

He eventually received the remainder of the documents

subpoenaed, including radio logs, mileage claims, vaca-

tion and overtime donation forms. [R.T. 16-17.] After

November 12, all subpoenas were served on Asst.

Marshal Cox in accordance with instructions from Mr.

Eastman, the prosecutor, which Mr. Medina understood

were the result of a request from Judge Hofstetter.

[R.T. 18-20. ]

*Captain Prater is erroneously referred to at R.T. 9-11

as Captain Praeder. He testified again at trial and his name

is correctly spelled in the Reporter's Transcript of his trial

testimony.

On cross-examination, Mr. Medina testified that he

made no attempt to serve a subpoena at any time

on the Marshal because he was a suspect. As far

as he was aware, no one took anything from the

Marshal’s own office. [R.T. 23.| Prior to November

12, Mr. Medina received a file folder containing trip

tickets and correspondence from Asst. Marshal Cox

at his home. Mr. Cox told him the Marshal had

asked him to take these papers to the Marshal’s office,

but Cox took them home instead. [R.T. 24-25. |

In denying the motion, the Court stated that Appel-

lant was clearly the titular custodian of all the records

in the Marshal’s office, but questioned whether, as

the custodian, Appellant had a clear legal right to

have the Grand Jury subpoenas served on him per-

sonally. [R.T. 46. |

The Marshal's Manual of Rules and Regulations,

Section 101.5, provides:

“The Marshal has the control of all records, books,

papers, offices, equipment, supplies; money, funds,

land and other property held for the use or benefit

of the divisions and offices within the department.”

The Marshal’s Manual was approved by majority vote

of all the Municipal Court Judges in Los Angeles

County under Government Code Section 72643, and

has the force of law. Appellant emphasizes that at

the time the various subpoenas were served he was

still the Marshal and was in complete charge of the

Marshal’s Department. No single Municipal Court

Judge could alter this position. Appellant contends

that, as custodian of the records, his right to challenge

the subpoena of the records was violated by the failure

to serve the subpoenas on him personally.

A person who has custody of the records has a

constitutional right to challenge the sufficiency of a

subpoena duces tecum prior to production of the rec-

ords. In Southern Pacific v. Superior Court, 15 Cal.2d

206, at 210 the California Supreme Court noted:

“It cannot be said that the issuance of a subpoena

duces tecum requiring the production of private

papers or documents in the manner provided by

Sections 1985 and 1986 of the Code of Civil

Procedure is violative of Article I, Section 19

of the Constitution of this state, which seeks to

protect the citizen against unreasonable searches

and seizures. Before any such paper, document,

book, or other thing is required to be produced

in court, the party against whom it is sought

to be used has the right to a judicial determina-

tion by the judge before whom the action is pend-

ing as to whether the matter sought to be produced

is material to the pending case, and also whether

its production in court will violate his constitu-

tional rights against unlawful search and seizure.

If he desires not to avail himself of this right

before the trial of the action commences and

prefers to await the time when he is called upon

to produce the documents in court, he may then

object to their admissibility on the ground of

their immateriality or that his constitutional rights

are violated by reason of his being compelled

to submit them in evidence before the court. It

will thus be seen that the party against whom

the evidence is offered has ample opportunity to

protect all his rights before the court in which

the action is pending.” (Emphasis supplied. )

ene we reese —e

——

—

Similarly, in Pelton Motors v. Superior Court, 120

Cal.App.2d 565, 569, the Court of Appeal noted:

“The approved method of testing the relevancy

and materiality of documents required by a sub-

poena duces tecum is to move to quash, vacate

or modify it. A witness upon whom has been

sei ed a subpoena duces tecum has a right to

question the validity of the writ and the duty

to produce the papers called for, and where a

subpoena has been improperly issued to enforce

the production of documents which the witness

is not bound to produce, and his rights are invaded

by it, he may properly apply to the court, whose

duty it would be to enforce the writ, to vacate

it or set it aside.”

Clearly, the party against whom subpoenaed documents

are to be used has a right to challenge the validity

of the subpoena prior to production of the document.

The doctrine discussed in these two cases is especially

applicable when a subpoena is used to obtain evidence

which ultimately will affect the custodian’s rights to

liberty or property. When any person’s rights to liberty

or property are adversely affected by state action, that

person is entitled to notice and a hearing to determine

whether the state conduct is legally proper. In Sniadach

v. Family Finance Corp., 395 U.S. 337, 339, the

United States Supreme Court held that a Wisconsin

statute permitting prejudgment wage garnishments was

unconstitutional because it authorized “a taking of prop-

erty without that procedural due process required by

the Fourteenth Amendment.” In McCallop v. Carberry,

1 Cal.3d 903, 906, the California Supreme Court held

that a debtor had a right to notice and a hearing

—

prior to the garnishment of wages. In Blair v. Pitchess.

5 Cal.3d 258, 280-81, the same notice and hearing

principles were applied to prejudgment claim and deliv-

ery. The underlying principle in each of these cases

was that when a debtor has dominion and control

over the same property or money that the creditor

has a legal right to obtain, the property or money

cannot first be seized without a notice and an eviden-

tiary hearing.

In the case at bar, the prosecutor's office sought

evidence to be used against Appellant by serving sub-

poenas duces tecum on Appellant’s subordinates. Appel-

lant was thus deprived of his right to challenge the

validity of the subpoenas in a pre-seizure hearing. This

in turn deprived Appellant of his rights to due process

of law. Evidence seized in violation of a criminal

defendant’s right to due process of law is inadmissible

in court. Mapp v. Ohio, 367 U.S. 643, at 660; People

v. Cahan, 44 Cal.2d 434, at 438. (In Mapp, the

majority justices held that the Fourth Amendment was

applicable to the state by reason of the Fourteenth

Amendment due process clause. Since the Fourteenth

Amendment due process clause was violated, the seized

evidence was inadmissible.) See also Palko v. Connecti-

cut, 302 U.S. 139, 324-325. In Palko, the eight-justice

majority held that the Fourteenth Amendment due proc-

ess clause is also violated when various Bill of Rights

guarantees are violated.

Appellant contends that the service of the subpoenas

on persons who were not in actual control of the

records is analogous to a police officer obtaining consent

from a third party to search a person’s home or personal

effects. Without an indication of control or a possessory

right held by the third person, a search made pursuant

to such consent is invalid. People v. Ingle, 53 Cal.3d

407, 416; Vandenburg v. Superior Court, 8 Cal.App.3d

1048, 1053. For example, a hotel clerk cannot give

consent to search a guest’s room (Stoner v. California,

376 U.S. 483 (1964); a landlord cannot consent to

a search of the tenant’s premises (Chapman v. United

States, 365 U.S. 610 (1961)); and an employer cannot

consent to the search of an employee’s desk (U/nited

States v. Blok, 188 F.2d 1019). In each of these

cases, the consenting party was not legally capable

of giving consent. In the case at bar, persons other

than the one individual vested with the authority to

give valid consent were subpoenaed and produced docu-

ments which were under the control of Appellant.

Since Appellant’s due process rights were violated, the

evidence seized was inadmissible.

Additionally, with respect to the radio logs (the

subject of Count VII) there was no evidence that

any subpoena duces tecum or other demand was served

upon Petitioner for production of these logs which

Petitioner has been convicted of secreting. Petitioner

contends that it was violation of due process to convict

him of secreting those logs without first subpoenaing

them or otherwise demanding their production by Peti-

tioner. The prosecution had information that Petitioner

personally had possession of these segregated radio

logs. Yet the basis for the prosecution of Petitioner

was Petitioner’s failure to produce the logs after a

subpoena duces tecum was served on the Assistant

Marshal, who did not have possession of the logs

since they were in Petitioner's possession, and who

never informed Petitioner of the existence of the sub-

poena.

_——

The absence of notice to Petitioner that the logs

were required to be produced should be a bar to

conviction for secretion of these logs. It was conceded

that Petitioner was entitled to keep those logs wherever

he wanted as he was custodian of all records of the

Marshal’s Department. Accordingly, he cannot be guilty

of secreting records he was never asked to produce.

In Applying Penal Code Section 424(1) in This Case,

the Court Interpreted the Statute so That It Is

Void for Vagueness (Count III).

In its opinion, the trial court quite admirably con-

ceded that it is difficult to assess the point in time

when the transportation of then Assemblyman Hayes

became a felony rather than the extension of a common

courtesy to a visiting dignitary. The Court stated:

“With regard to the first point, there is no question

but that the Marshal had the authority to extend

a courtesy, such as transportation, to a prominent

public official and to this extent the general prin-

ciple stated above admits of exception, as con-

ceded by the prosecutor in argument. At what

point, however, does the frequency of such activity

with regard to a single recipient exceed the scope

of the exception?

I have been much troubled by this question. Public

officers should not be obliged to act at their

peril in such matters, with their criminal liability

determined in the light of 20/20 hindsight or

criteria developed long after the fact. I think coun-

sel could sense my reluctance to draw any fine

distinctions in this area.

— =

As it developed, my review of the record and

exhibits over the last several weeks makes this

unnecessary. The evidence in this case thoroughly

convinces me that the transportation of Hayes, done

with the frequency that it was and in the political

context of the time, was so significantly beyond

the scope of courtesy commonly extended mutually

by public officials that no reasonable man could

conclude other than this activity was without au-

thority of law.” [R.T. 3240-41. |

The standard employed by the Court in applying

Section 424(1) was so vague that it denied Appellant

due process of law. In cases involving statutes, the

United States Supreme Court has held that laws must

give citizens fair notice of what conduct constitutes

a crime. In Papachristou v. City of Jacksonville, 405

U.S. 156, the Court in analyzing a vagrancy statute

noted:

“This ordinance is void for vagueness, both in

the sense that it fails to give a person of ordinary

intelligence fair notice that his contemplated con-

duct is forbidden by the statute (citations) and

because it encourages arbitrary and erratic arrest

and convictions.”

The rationale for requiring that statutes clearly delineate

what conduct is proscribed was discussed by the Court

in Grayned v. City of Rockford, 408 U.S. 102, 108-

109:

“It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions

are not clearly defined. Vague laws offend several

important values. First, because we assume that

man is free to steer between lawful and unlawful

—

conduct, we insist that laws give the person of

ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent

by not providing fair warning. Second, if arbitrary

and discriminatory enforcement is to be prevented,

laws must provide explicit standards for those

who apply them. A vague law impermissibly dele-

gates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and

discriminatory application.”

Clearly, if the standard used to evaluate Appellant's

conduct was vague, then his conviction violates due

process.

The basis for the Court’s decision was the fact

that:

“The transportation of Hayes, done with the fre-

quency that it was and in the political context

of the time, was so significantly beyond the scope

of courtesy commonly extended mutually by public

officials that no reasonable man could conclude

other than that this activity was without authority

of law.” [R.T. 3241.]|

However, there is no definable standard as to how

much free transportation is “within the scope of courtesy

commonly extended mutually by public officials.” The

trial court’s basis for decision is not found in any

standard enunciated by an appellate court in the lan-

guage of Penal Code Section 424(1). There is no

authority which limits the number of free rides that

may be given to public officials and there is no guide

offered by the law to those who extend such courtesies

—_

as to when they begin engaging in conduct which

places them in jeopardy of a state prison sentence.

The reason for this lack of legal guidance is that

Section 424 has never been applied to misappropriation

of services nor was it ever intended to be so utilized.

Since the standard for determining guilt adopted by

the trial court was not based on any pre-existing

standard which was sufficiently specific to give fair

notice of what conduct was illegal, Appellant’s convic-

tion must be vacated.

Ill

The Conviction on Count III Was the Result of a Dis-

criminatory Prosecution and Was Therefore Un-

constitutional,

Appellant was convicted in Count III of violation

of Penal Code Section 424(1) for providing transporta-

tion for Assemblyman Hayes at a time when he was

an announced candidate for the Los Angeles County

Board of Supervisors. According to Deputy Baraldi,

the Marshal instructed him sometime in January, 1972,

to pick up Mr. Hayes whenever he received a call

and to take him wherever he wanted to go. [R.T.

1000.| Because of this arrangement, Appellant was

charged in Counts III and IV of the Indictment with

violation of Penal Code Sections 424(1), 424(3),

487.1, 504 and 514. Supervisor Hayes was not charged

with any offenses as a result of his use of a county

vehicle and driver for campaign purposes.

On the date of the motion for a new trial, Appel-

lant presented a motion for evidentiary hearing on

the discriminatory prosecution issue. Appellant offered

to prove that Supervisor Hayes was fully aware of

the extent to which county vehicles were being used

for the transportation of himself and his assistants.

[R.T. 3251.| The request for evidentiary hearing was

denied. |R.T. 3253.|*

Appellant contends that if, in fact, his activity in

authorizing the transportation of Hayes constituted a

crime, then his conviction under Count HI was the

result of a discriminatory prosecution in violation of

the ejual protection clause of the Fourteenth Amend-

ment. His conviction on this count should be reversed

with instructions to dismiss.

A. Supervisor Hayes Could Have Been Charged With the

Same Offense Under an Aiding and Aetting Theory.

Under Penal Code Section 31, a person who aids

and abets in the commission of a crime is liable as

a principal. Under such a theory, a person may be

guilty of a crime which he personally could not com-

mit. (Witkin, I California Crimes, 1963, Section 44,

at 47.) The test for determining whether a person

is aiding or abetting is “whether the accused in any

way, directly or indirectly, aided the perpetrator by

acts or encouraged him by words and gestures.” (People

v. Villa, 156 Cal.App.2d 128, 134. See also People

v. Belenger, 222 Cal.App.2d 159, 163.)

In the case at bar, Supervisor Hayes clearly aided

and abetted Appellant in any alleged unlawful conduct.

It was upon Mr. Hayes’ request that transportation

would be available. Without the Supervisor’s request

for transportation and personal presence in the auto-

*It may be that such a hearing was not necessary, as

the record does contain evidence that between January and

August of 1972 Hayes himself was transported by Deputy

Baraldi |See R.T. 1002-3], and that Hayes himself was trans-

ported “with some frequency” throughout July of 1972 by

Deputy Hurd while Baraldi was on vacation. [R.T. 1143.]

Se li ala glaipaggil

= =

mobile, Appellant would not have been convicted of

violating Section 424(1). Supervisor Hayes is certainly

liable as an aider and abetter.

B. Supervisor Hayes Could Have Been Charged With Violating

Section 424(1) on the Theory That He Was a Co-

Conspirator.

A conspiracy is an agreement “between two or more

persons that they will commit an unlawful act, that

is, they will combine together to accomplish by the

united action a criminal or unlawful purpose.” (Witkin,

I California Crimes, supra, Section 105, at 99.) In

the instant case, Appellant allegedly agreed with then

Assemblyman Hayes’ request that a county vehicle with

a specifically named deputy marshal as driver would

be available upon Hayes’ request. The court concluded

that Appellant thereby vio’»ted Section 424(1). It nec-

essarily follows that in agreeing to use the county

vehicle and driver, Supervisor Hayes conspired to violate

Section 424(1).

C. Failure to Prosecute Supervisor Hayes Violated Appellant's

Right to Equal Protection of the Law.

Even though a law is constitutional, if it is applied

in an unequal and arbitrary fashion, a criminal defend-

ant’s right to equal protection of the law is violated,

as are his rights under Sections 2! and 22 of Article

I of the State Constitution. These sections have been

construed as “substantially the equivalent” of the equal

protection clause of the Fourteenth Amendment. (Ser-

rano v. Priest, 5 Cal.3d 584, 596, fn. 11.) In Yick

Wo v. Hopkins, 118 U.S. 356, 373-74, the Supreme

Court held:

“Though the law itself be fair on its face and

impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye

and an unequal hand, so as practically to make

unjust and illegal discriminations between persons

in similar circumstances, material to their rights,

the denial of equal justice is still within the pro-

hibition of the Constitution.”

Naturally, it must be presumed that the legislature

intended that Section 424(1) would be “impartially

applied.” (People v. Gray, 254 Cal.App.2d 256, 266.)

The Gray case involved a discriminatory prosecution

for violating a municipal sign ordinance. As a result,

a discriminatory prosecution against a single person

is violative of the equal protection clause. In Snowden

v. Hughes, 321 U.S. 1, 8, the Supreme Court held:

“The unlawful administration by state officers of

a state statute fair on its face, resulting in its

unequai application to those who are entitled to

be treated alike is not a denial of equal protection

unless there is shown to be present an element

of intentional or purposeful discrimination. This

may appear on the face of the action taken with

respect to a particular class or person . . . or

it may only be shown by extrinsic evidence showing

a discriminatory design to favor one individual

or class over another .. .”

(The Snowden case involved unequal application

of a state’s election laws.) Moreover, the defense of

a discriminatory prosecution applies to criminal cases.

(Two Guys From Harrison-Allentown v. McGinley,

366 U.S. 582, 589; United States v. Robinson, 311

F.Supp. 1063, 1065-66.) In Robinson, the district court

dismissed a charge of illegal wiretapping when it was

shown that the government freely engaged in the pro-

aitive

scribed conduct. (United States v. Steele, 461 F.2d

1148, at 1150-52.) In Steele, the defendant was charged

with violating census laws. (People v. Gray, supra,

at 266; People v. Winters, 171 Cal.App.2d Supp. 837.)

The Winters and Harris cases involved discriminatory

gambling prosecutions.

The case at bar presents an example of a purposeful

discrimination against Appellant. The Los Angeles

County District Attorney’s Office is wholly dependent

on the Board of Supervisors for funding and is subject

to supervision and regulation by the board. A motive

clearly exists on the part of the prosecutors to “look

the other way” insofar as Supervisor Hayes’ misconduct

is concerned. To ignore Mr. Hayes’ conduct because

he is a supervisor who has some control over the

District Attorney’s Office, and then to prosecute Appel-

lant, who as Marshal had no control over the prosecu-

tor’s office, is an arbitrary action which violates Appel-

lant’s Fourteenth Amendment rights. Moreover, mem-

bers of Mr. Hayes’ staff would also be liable for

prosecution. Accordingly, Appellant was singled out

for prosecution because he did not present a threat

to the District Attorney’s Office; whereas, by reason

of their power and position, all of the other potential

Defendants, either as a supervisor or members of the

supervisor's staff, could detrimentally affect the opera-

tions of Mr. Busch’s office.

The fact that this case does not involve an example

of systematic discrimination against large numbers of

people in society, and does not appear to be the result

of a long continuing policy of discrimination over a

several-year time span is irrelevant for purposes of

the Fourteenth Amendment. In Snowden v. Hughes,

supra, at 9-10, the Supreme Court noted: “such discrim-

aiiiun

ination may also be shown to be purposeful and hence

a denial of equal protection, even though it is neither

systematic nor long continued.” Therefore, so long as

the discrimination is intentional, the fact that such

discrimination may have occurred only on this one

occasion is sufficient to bring into play the policies

underlying the Fourteenth Amendment and Article I,

Sections 21 and 22 of the California Constitution.

Nothing is more fundamental to this society than

the doctrine that the law must be fairly and equally

enforced. The events of the past two years are tragic

and eloquent documentation of this truth. In Yick

Wo v. Hopkins, supra, at 369-70, the court noted:

“When we consider the nature and theory of our

institutions of government, the principles upon

which they are supposed to rest, and review the

history of their development, we are constrained

to conclude that they do not mean to leave room

for the play and action of purely personal and

arbitrary power.”

In this case, an arbitrary decision to prosecute Appel-

lant for the “candidate’s driver transaction” was made.

As a result, Appellant has become a convicted felon

with the possibility of a state prison sentence, while

the person who benefited from the use of the car

and driver freely walks in the halls of power of county

government. This gross violation of Appellant’s Consti-

tutional rights requires that the indictment against him

be dismissed.

The California Court of Appeal says Appellant can-

not argue discriminatory prosecution because the con-

tention was not made at or prior to trial and therefore

was untimely even though raised at the time of hearing

on the motion for new trial. Whatever merit such

a contention of untimeliness might have had if the

trial judge had rejected Appellant’s contention on the

ground of untimeliness, the fact is that the trial judge

ruled on the issue on the merits, and concluded that

Hayes was guilty of misappropriation by aiding and abet-

ting Appellant since Hayes was himself the recipient

of the services Appellant provided, and aware of the

frequency of the services provided to his staff and

family, but that failure to prosecute Hayes did not

warrant the acquittal of Appellant. [R.T. 3241, lines

2-9, 3250, lines 16-18, 3251, lines 19-22, 3253, lines

6-28. |

In fact, the trial court stated that Appellant had

preserved his right to raise the issue of discriminatory

prosecution “later,” meaning, presumably, on appeal.

[R.T. 3253, lines 26-28. |

The trial court having ruled on the issue on the

merits, and having concluded that Appellant had pre-

served the issue for argument on appeal, this Court

should decide the issue on the merits, and not reject

Appellant’s contention on the false premise it was

not timely raised.

Moreover, no prejudice to the prosecution resulted

from failure to rais« the issue prior to the hearing

on the motion for new trial. In fact, it was the trial

itself that produced the evidence that Hayes not only

personally received overly frequent transportation from

the Marshal’s office, but also that Hayes was aware

of the frequency with which transportation was provided

to his family and staff. [R.T. 3241, 3250, 3251, 3253.|

Since the extent of Hayes’ personal involvement and

knowledge was brought out at trial, it was logical

to make the motion after the trial, at which time

_ | =

there was sufficient evidence in the record to establish

discriminatory prosecution without the necessity i any

additional hearing on the matter.

Conclusion.

A Writ of Certiorari should be issued, directed to

the California Court of Appeal ordering it to vacate

its Opinion and to remand the case to the tria! court

with instructions to dismiss the Indictment.

Respectfully submitted,

ROBERT PAYSON,

Attorney for Petitioner.

he tee te AB

APPENDIX.

Opinion of the Court of Appeal.

In the Court of Appeal of the State of California,

Second Appellate District, Division Five.

People of the State of California, Plaintiff and Re-

spondent, vs. Timothy Speri, Defendant and Appellant.

2d Crim. 26259, LASC. A-304507.

Filed: Jan. 21, 1976.

In a nonjury trial defendant Sperl, who was the

Marshal for Los Angeles County, was convicted in

count I of violating Penal Code section 424, subdivision

3, in that he had knowingly kept false accounts relating

to the receipt, etc., of public moneys (Legislative Ad-

vocates transaction); in count III of violating section

424, subdivision 1, in that he misappropriated public

moneys for the use of another (Candidate’s Driver

transaction); in count V of violating section 424,

subdivision 3 in that he knowingly kept false accounts

or made false entries or erasures in accounts relating

to the receipt, etc. of public moneys (Marina Del

Rey transaction); in count VII of violating Government

Code section 6200 (theft, destruction, falsification, se-

cretion or removal of public records by an officer cus-

todian); and in count IX of violating Government

Code section 31114, subdivision 3, a misdemeanor

(furnishing special and secret information for the pur-

pose of either improving or injuring the prospects

of persons to be examined under a county civil service

system). Defendant’s motions for an evidentiary hearing

and for a new trial were argued and denied. As

to counts I, III, V and VII, defendant was sentenced

to the state prison for the term prescribed by law,

execution of the sentence was suspended, and he was

placed on probation for a period of four years, on

certain terms and conditions, one thereof being that

he spend the first six months in the county jail. As

to count IX defendant was fined $500.00; however,

payment of the fine and service of the county jail

condition were ordered to be stayed pending appeal.

Defendant Sperl has appealed from the judgment of

conviction.

STATEMENT OF FACTS

Count 1—Legislative Advocates Transaction

Deputies Sewards, Vogts, and Marquez, Sergeant

Johnson and Lieutenant Samuels testified that they

were members of the Los Angeles County Marshal’s

department. At various times during 1971 and 1972

defendant Sperl assigned them to the Administrative

Bureau and placed them on special assignment as

a legislative advocate representing the Los Angeles

County Marshals Association, a private association. In

that capacity they were assigned to duties in Sacramento

where they would review legislation and make recom-

mendations to the local Legislative Committee on mat-

ters that were of interest to their particular association.

They were not acting on behalf of the Marshal’s De-

partment of Los Angeles County. As a legislative

advocate they would be required to go to Sacramento

from time to time, depending on the status of the

legislation they were following. Their transportation

to Sacramento and back, and their expenses for food

and lodging while in Sacramento, were paid for by

the Association.’ However, they continued to receive

their normal pay check from the County of Los Angeles

'In 1974 the Board of Supervisors approved county payment

of the legislative advocate’s expenses in Sacramento.

caliem

during the entire period of time they were acting

as legislative advocates. The advocates would initial

the monthly reports indicating they had worked the

normal working hours. These reports were prepared

by Natalie Scotton, defendant’s administrative secretary.

It was her responsibility to carry the time for the

people assigned to the Administrative Bureau.

There was nothing in the monthly personnel rosters

that would indicate that the deputies were doing any-

thing other than working for the County. There was

evidence that Natalie Scotton kept a system of double

timekeeping books, “actual time” and “Sacramento

time.” The deputies understood that time earned for

vacation and as compensatory overtime was being de-

ducted in exchange for the time spent in Sacramento;

however, all vacation time was “given back.”

Captain Perkins was Chairman of the Legislative

Committee of the Marshal’s Association for the fiscal

years 1970-71 and 1971-72. In January 1972 defendant

told him to keep accurate records of the amount

of time the advocates were spending in Sacramento

and that they were to go on their vacation time,

overtime, or donated vacation time. However, Perkins

understood from defendant that the time spent in Sac-

ramento “should not be a sacrifice to their own personal

vacation time; that time would be restored.”

Perkins spoke with defendant about the sufficiency

of overtime and vacation time of advocates to cover

their activities in Sacramento. Perkins told defendant

that the advocates wanted to take their own personal!

vacation time but there was “no time left” on the

books. Defendant told him to mark the men present

when, in fact, they were not present.

—

Perkins further stated that he was present when

defendant told Natalie Scotton to mark absent deputies

as present or on overtime that was manufactured.

In late 1973 and early 1974, Captain Perkins, who

had a background in accounting and bookkeeping, as-

sisted in the grand jury inquiry and reconstructed time

spent on legislative activities as to each advocate and

carried a balance as to what was due the county

or due to the advocate. He was assisted by Natalie

Scotton and an auditor from the district attorney’s

office. His sources included Scotton’s books, the month-

ly personnel reports, Departmental absence reports, and

overtime slips. A recap sheet introduced into evidence

showed the loss to the county for advocate time spent

in Sacramento. The total raw figure for all legislative

advocates was $11,185.99.

Natalie Scotton, defendant’s administrative secretary,

testified that in early 1972 defendant instructed her

to show the advocates as absent on the days they

were in Sacramento but to “work it” so that the advo-

cates would not lose any of their own time. She was

to keep a separate record as to the time the men

were actually off on their own time and then to show

them present for these days on the timesheet that

went to the payroll office. When the deputies were

in Sacramento, she showed them on vacation or over-

time. When they were running out of vacation and

overtime, she would then “manuiacture” overtime by

e Jding hours to their normal day.

—

Count 111—Candidate’s Driver Transaction:

Misappropriation of Public Monies

Gene Baraldi, deputy marshal for Los Angeles Coun-

ty, received instructions from defendant in January

1972 to pick up then Assemblyman Hayes whenever

he received a call and to take him wherever he wanted

to go. From the beginning of this special assignment

in January until approximately May 5, 1972, Baraldi

transported Hayes, his staff and his family in a county

automobile. After May 5 and until August 29, 1972?

he usually used Hayes’ personal vehicle; however, he

continued using the county vehicle to transport Hayes’

staff and family. Whenever he was driving a county

vehicle, the county paid his wages; when he was driving

Hayes’ personal car, he would take this time off his

overtime. He reported the hours worked to Natalie

Scotton. From his personal notebook and trip tickets

Baraldi computed that his total salary prior to August

1972 for transporting Hayes, his family and staff

amounted to $1,759.72.°

Eddy Tanaka, chief analyst in the County Adminis-

tration office in 1972, testified that it was the county

policy in August 1972 to escort dignitaries (state and

federal legislators) if their activity directly related to

county business.

*After August 29, 1972, when Hayes was appointed a Super-

visor for Los Angeles County by the Governor, Baraldi was

temporarily assigned to the Board of Supervisors where he

worked as Hayes’ aide and driver until the last of May 1973.

’Charles Hurd, deputy marsha! for the county, testified that

during July 1972, while Baraldi was on vacation, he transported

many dignitaries in a county vehicle and on county time.

He particularly transported Hayes, his staff and family, with

some frequency.

ies

Count V—Marina Del Rey Deputies—Campaign

Telephone Calls for a Candiasie

In April of 1972 Cherry Povolock was working

for Bishop and Associates, an advertising and public

relations firm. During that month she coordinated a

fund raising testimonial dinner for Hayes who was

candidate for the office of County Supervisor. For

two to three weeks near the end of April there were

two to five men on any given day from the marshal’s

office who were volunteering their time to make tele-

phone calls.

Several men from the administrative division of the

marshal’s office testified that they worked on the Hayes

dinner: Deputy Locke, approximately 8 days; Deputy

Keenan, 5 to 10 days; Sgt. Hopton, 2 days; Deputy

Davis, 7 days; Sgt. Tepas, 6 to 8 days; Lt. Hodgkins,

2 days; and Deputy Marquez, 2 half days. With the

exception of Deputy Locke, each man understood that

the time worked on the testimonial dinner was to

be debited against his vacation or compensatory over-

time. Deputy Locke did not know at the time how

his time was being marked. Sgt. Hopton noticed later

that his overtime did not decrease after his assignment.

Natalie Scotton kept the time records for the adminis-

trative division of the marshal’s office during April

and May of 1972. During the month of April she

marked the above deputies present for the days that

they actually worked on the dinner. In May or June

defendant gave her a list showing these deputies and

told her to get back the monthly time sheets from

the payroll office to make certain changes. Defendant

wanted these men shown as “off so that they do not

lose any of their own time.” He also wanted her

a nee Ns eT i OE eR le rl

< oe ene le canine ed emis me ~ 0

to “destroy all the old documents” and to “[c]hange

the records. Mark these people off and fix it so they

don’t lose any of their own time.” She then proceeded

to make the requested changes in both the time book

and on the daily absence reports and the monthly

time reports. If necessary, she added in overtime for

March to cover the time spent for the dinner. The

deputies did not work the overtime she added.

Captain Perkins testified that his computations

showed that the total number of working hours spent

at the Marina for the telephoning was 440 and the

loss to the county amounted to $2,994.24.

Count VII—Candidate Driver Transaction—

Radio Logs

Emil Lindquist, head of Administrative Services,

Marshal’s Department, testified that the radio logs and

ledgers from the marshal’s department are stored in

the county archives. Under the marshal’s Manual of

Rules and Regulations the records generally are de-

stroyed after five years.

In October 1973, James O'Connell, acting head of

the county archives, received a letter from defendant

authorizing certain members of the marshal’s department

access to the records from the marshal’s department

that were stored in the archives.

Frank Maas, supervisor of the records section of

the archives, testified that in October 1973 Deputies

Castaneda and Alexander, both of whom were from

the marshal’s office, told him they were interested

in seeing communication records and radio logs. After

obtaining the necessary authorization, Castaneda and

Alexander, accompanied by one or two other individ-

_—

uals, withdrew certain records. Later about 20 boxes

of records were returned; however, Maas did not know

the contents of the boxes.

In October 1973, Sgt. Millard Johnson was working

in traffic court in the marshal’s department. During

the week of October 11, he and Deputies George

Rodriguez and Gene Baraldi went over to the Hall

of Records to “pull . . . boxes.” He learned from

conversations with Baraldi and Rodriguez that the boxes

contained radio logs.

After retrieving the boxes they took them to the

basement of the Criminal Courts building where John-

son opened the boxes, took out folders and went through

each stack one by one. Lt. Alexander told him to

remove all logs that referred to trips to the airport.

Johnson also thought that there might have been men-

tion of removing logs pertaining to the transportation

of a dignitary and to the marina. He spent until 5:30

or 6:00 p.m. doing so. Lt. Alexander and Baraldi

also removed radio logs during this time.

Baraldi testified that on October 11, 1973, Castaneda

told him to go to the archives and pull certain boxes.

He complied with Rodriguez’ and Johnson’s help. Upon

Lt. Alexander’s instructions both Baraldi and Johnson

removed radio logs pertaining to transportation of dig-

nitaries, a fiesta or the marina, placed them in a

brown envelope and gave them to the defendant at

the end of the day. He returned the next day and

continued to remove radio logs, along with Lt. Alexan-

der, Captain Spencer and defendant. He was instructed

by both Alexander and defendant to say that they

were looking for missing radio logs if anyone caught

them. At the end of the day he saw defendant place

eee es ee 7

A aes et oe meme ~

audios

the envelope containing the pulled logs in his automo-

bile.

On November 12, Baraldi was in Captain Spencer's

office when Lt. Alexander came in and said, “We

will have to get our stories together, if we’re going

to be called as witnesses in the district attorney’s office.”

A meeting was arranged with defendant at a pancake

house. Present were Captain Spencer, Lt. Alexander,

defendant, and Baraldi. After discussions back and

forth, Alexander and defendant decided to say that

they were in the basement searching for missing radio

logs. Defendant also made a statemem to the fact

that “this was a big political thing.” Baraldi replied

that if it was political “then it would be you and

I that are involved”, since Baraldi had been so close

to Hayes. Defendant and Alexander also discussed mak-

ing a report having to do with the searching of the

missing radio logs. It was to be pre-dated and they

agreed upon a date.

On November 15, Baraldi told Castaneda that he

thought defendant should replace the files. Castaneda

said he would talk to defendant. Later that day when

Castaneda came to his office, Baraldi asked “What

did the marshal say? Is he going to put the records

back?” Castaneda replied, “No. They've been de-

stroyed.”

Baraldi assisted the district attorney in the reconstruc-

tion of the radio logs and it was determined that

there were 299 missing radio logs in the group they

searched.

William Ritner, Captain Perkins’ personal attorney,

testified that he met with Perkins and defendant during

the week of November 13, 1973. During their conversa-

tion, Perkins asked about the trip tickets and defendant

responded, in essence, that they had been found and

“taken care of”; “don’t worry about them.”

Count 1X—Civil Service Board

In January 1973 Kenneth Olsen, a lieutenant in

the Pasadena police department, was designated as

a rater for the civil service oral board for promotions

to the position of sergeant in the Marshal’s department.

On February 6, 1973, he attended a luncheon meeting

with two other raters (Lts. Smith and Hughes), defend-

ant and another member from the marshal’s department.

At the luncheon either defendant or his aide gave

Olsen a file folder containing a ballpoint pen, a

felt tip pen, cigarette lighter, pocket calendar instru-

ment, and a list of candidates for the position of

sergeant. The list described the candidates as “outstand-

ing,” “very good,” “good” and “poor.” During their

meeting defendant expounded on the qualifications of

the candidates. It was Olsen’s opinion that defendant

was trying to influence the oral board. As a result,

he resigned from the board.

Lt. Smith and Lt. Hughes gave essentially the same

testimony as Olsen. They also felt that they were

being told which men to rate highly and which ones

should not be considered for high ratings. Both men

withdrew from the board.

Larry Miller, personnel analyst for Los Angeles Coun-

ty. was responsible for coordination of the promotional

examination for sergeants’ positions in the marshal’s

department in early 1973. On promotional examina-

tions, the oral raters are usually chosen from outside

the candidates’ department because they want raters

who have had no prior exposure to the candidates.

Oe ee

_— =

It is always to be an objective process and the inter-

viewers are not supposed to be influenced by outsiders

or any prior knowledge. On recross examination Miller

testified that he had previously explained to defendant

the process of the promotional exams and the impor-

tance of keeping the different parts separate. He also

stated that he believed defendant had been successful

in encouraging the promotion of minorities within his

department.

Elliot Marcus, division chief with the Los Angeles

County Department of Personnel, testified that as a

matter of policy, it was not permissible for a department

head to discuss candidates with the oral board, even

if the purpose was to go along with the minority

affirmative action program.

Defendant testified on his own behalf and generally

denied any criminal conduct as to counts I, III, V

and VII. As to count IX defendant stated that he

was trying to implement the county affirmation action

policy and had spoken to the three lieutenants for

that purpose alone. He had not been trying to influence

the grade for any specific individual. As to count

VII, defendant denied destroying any of the radio

logs, that he took them home, later brought them

back to his office, and that they were taken from

his office by persons unknown. As to counts I, III,

V, and VII, defendant denied that he had falsified

any records, ordered anyone to do so, or destroyed

any records. He did not wilfully cause any false docu-

ments to be made so as to cause the county to pay

out money unlawfully for deputies’ salaries or overtime.

On rebuttal Harold Gartner III, an attorney, testified

that he was present at the November 12, 1973 meeting

of defendant, Captain Perkins and Ritner. During their

conversation defendant stated something to the effect

that he had ordered the trip tickets destroyed and

was “amazed when later he found out that either a

duplicate set or the originals had been found.”

DEFENDANT'S CONTENTIONS

1. The motion to suppress evidence supplied to

the grand jury pursuant to subpoena duces tecum should

have been granted.

2. The conviction under Count I is in error because

the accounts and entries at issue were not false.

3. The conviction on Count III was the result

of a discriminatory prosecution and was unconstitu-

tional.

4. The conviction on Count III was in error be-

cause services are not “public moneys” within the mean-

ing of sections 424 and 426 of the Penal Code.

5. The conviction on Count III was in error because

providing of transportation for dignitaries was within

the marshal’s authority, and hence there was no violation

of Penal Code section 424, subdivision 1.

6. In applying Penal Code section 424, subdivision

| in this case, the trial court interpreted the statute

so that it is void for vagueness as to Count III.

7. The conviction under Count V is in error and

must be reversed.

8. There was insufficient evidence to sustain defend-

ant’s conviction on Count VII.

9. Hearsay testimony that violated the rule an-

nounced in People v. Leach, 15 Cal.3d 419 was received

in evidence on Count VII.

10. Defendant’s conviction on Count IX was the

result of a coerced statement and should be reversed.

DISCUSSION

1. Contrary to defendant’s assertions, his motion

to suppress evidence pursuant to Penal Code section

1538.5 was properly denied. Prior to trial defendant

sought to suppress certain evidence which included

the time books, payroll cards, monthly personnel time

sheets, radio logs and transportation requests. This

evidence was supplied to the grand jury by various

individuals pursuant to grand jury subpoenas duces

tecum served upon various custodians of such records

in the marshal’s department. Defendant argues that

as the custodian of the records as Marshal of Los

Angeles County, “his right to challenge the subpoena

of the records was violated by the failure to serve

the subpoenas on him personally.” He asserts further

that he was deprived of “his right to challenge the

validity of the subpoenas in a pre-seizure hearing”

and therefore was denied due process of law.

Under Penal Code section 919 the grand jury may

inquire into the willful or corrupt misconduct in office

of public officers of every description within the county.

Penal Code section 921 provides that the grand jury

“is entitled to free access, at all reasonable times,

. . . to the examination, without charge, of all public

records within the county.” This section was enacted

to avoid the rule in some jurisdictions that the authority

to investigate crimes and misconduct by public officers

did not also permit the grand jury to examine public

records. (Board of Trustees v. Leach, 258 Cal.App.2d

281, 285.) Here, the grand jury was investigating

possible misconduct by defendant as marshal of Los

Angeles County; all the records subpoenaed were of-

ficial records of a county department; none were the

defendant's private property. Under these circumstances,

—s

the grand jury had access to these records irrespective

of any asserted rights by defendant Sperl.

Furthermore, where public records are the object

of the subpoena, a person having custody of same

cannot refuse to produce them on the basis of the

privilege against self incrimination. Therefore, since

defendant could not assert such constitutional right

in public records, the necessity for personal service

upon him does not arise in order that he may contest

the issuance of the subpoena. A grand jury’s power

is analogous to that of an administrative inquiry (Gov.

Code, § 11180 et. seq.). (See United States v. Morton

Salt Co., 338 U.S. 632, 643.) Even though defendant,

as Marshal, may have been the titular custodian and

have had a general control over all documents within

his department, nevertheless, a subpoena duces tecum

could be lawfully directed to a subordinate within

his department who had actual custody or control

of the documents, There is no requirement that de-

fendant, as the head of a county department, be per-

sonally served.

Defendant suffered no prejudice by reason of not

being able to bring some form of “pre-seizure” hearing

concerning whether or not the subpoenas duces tecum

were properly authorized. At his 1538.5 motion, defend-

ant contested the admissibility of such evidence and

challenged both the efficacy and the legality of the

subpoenas. Defendant’s arguments were fully considered

by the trial court and were properly found to lack

merit.

2. As to count I (Legislative Advocates Transac-

tion), defendant contends that he was improperly found

guilty of Penal Code* section 424, subdivision 3. He

4Unless otherwise stated, all sections cited are from the

Penal Code.

argues that since the court found that there was no

underlying misappropriation as to count I, and that

the lobbying activity was not inherently improper or

inappropriate, “then it was not a false entry to indicate

lobbying time as time worked;” and that “in light

of the allowance for administrative corrections, such

inaccuracies as existed in the accounts did not rise

to the dignity of false entries or the keeping of false

accounts within the meaning of Penal Code section

424, [subdivision] 3.” He further asserts that if there

is no underlying misappropriation as defined in section

424, subdivisions | and 2, subdivision 3 is “inoperative.”

Section 424 provides in pertinent part: “Each officer

of this state, or of any county . . . 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 own use, or to the

use of another; or...

3. Knowingly keeps any false account, or makes

any false entry or erasure in any account of or relating

to the same; or .. . is punishable. . .”

Clearly subdivision 3 does not become “inoperative”

when there is no misappropriation under subdivision

1. Subdivision 3 states a separate offense from that

defined in subdivisions 1 or 2. The subdivisions of

section 424 are in the disjunctive; one may be violated

without violating the others; and they are couched

in the alternative with the word “or” after each subdi-

vision.”

5See People v. Qui Mei Lee, 48 Cal.App.3d 516, 521,

where the court states: “Whereas subdivision 1 refers to the

misappropriation of public moneys, other subdivisions of section

(This footnote is continued on next page)

In the present case there was overwhelming evidence

to support the determination of the trial court that

defendant ordered false entries to be made in deputies’

time records. The record reveals that defendaut insti-

tuted an elaborate system to falsify the records as

to the legislative advocates. Defendant directed his secre-

tary, Natalie Scotton, to “manufacture” overtime and

to show the deputies present when in fact they were

not present and working as deputy marshals in order

that the advocates’ time in Sacramento would not be

“sacrificed.” The record shows that defendant repeatedly

instructed his secretary to falsify time records. Captain

Perkins testified that defendant told him to mark the

advocates present so they could take personal vacation

time even though there was no vacation time left for

them on the books. Such extens evidence of fabrica-

tions and falsifications can hardly be termed “adminis-

trative corrections” as defendant argues. Defendant’s

systematic pattern of directing false entries to be made

in the advocates’ accounts falls within the meaning of

section 424, subdivision 3.

Defendant also asserts that section 424, subdivision

3 relates only to false accounts, etc. relating to public

moneys, and since the records of the deputies’ time

in Sacramento are not “accounts of or relating to

public moneys,” the conviction must be reversed. Un-

questionably, the advocates’ time records “related” to

the disbursement of public moneys. These records were

used as the basis for the disbursement of county funds

to the various employees and defendant was under

an obligation as a public officer not to cause such

424 address themselves to such misconduct as the making

of unauthorized loans and profits from public moneys, the

keeping of false accounts concerning such funds, and the willful

refusal to pay them over upon proper demand.”

— =

funds to be paid improperly. The falsification of these

records directly resulted in a monetary loss to the

county since the advocates were receiving payment

for work that was never performed. (See People v.

Marquis, 153 Cal.App.2d 553, 559-63; People v. Dillon,

68 Cal.App. 457, 461-469.)

3. Defendant contends that his conviction as to

Count III (Candidates’ Driver Transaction) should

be reversed because the conviction was “the result

of a discriminatory prosecution” in violation of the

equal protection clause of the Fourteenth Amendment.

He argues that Supervisor Hayes aided and abetted

defendant in the alleged unlawful conduct and thus

could have been charged with the same offense (viola-

tion of Pen. Code, § 424, subd. 1), and that the

failure to do so violated his right to equal protection.

However, defendant did not plead or prove this as

a defense in the trial court below; he did not offer,

or attempt to offer, any proof of alleged discriminatory

prosecution or laxity of prosecution by the district

attorney, until the motion for new trial hearing, at

which time he sought to introduce this issue into

the proceedings.

This issue should have been raised earlier, and pref-

erably before trial. In Murguia v. Municipal Court,

15 Cal.3d 286, 293-294 fn. 4, the court states:

“... ‘The question of discriminatory prosecution relates

not to the guilt or innocence of [the accused], but

rather addresses itself to a constitutional defect in

the institution of the prosecution.’ (United States v.

Berrigan (3d Cir. 1973) 482 F.2d 171, 175.) As

such, the claim ‘should not . . . be tried before

the jury . . . but should be treated as an application

— =

to the court for a dismissal or quashing of the prose-

cution upon constitutional grounds.’ (People v. Utica

Daw’s Drug Co. (1962) 16 App.Div.2d 12 [225 N.Y.S.

2d 128, 131].)

“Second, because a claim of discriminatory prose-

cution generally rests upon evidence completely extrane-

ous to the specific facts of the charged offense, we

believe the issue should not be resolved upon evidence

submitted at trial, but instead should be raised, as

defendants have done here, through a pretrial motion

to dismiss .. .”

Furthermore, an examination of the record shows

that no evidence was presented by defendant of dis-

criminatory law enforcement as a defense to any count

in the indictment. It is to be presumed that official

duty has been regularly performed. (Evid. Code, §

664.) The defendant, therefore, had the burden of

showing that official duty had not been regularly per-

formed and that there had been intentional discrimina-

tory enforcement. (People v. Gray, 254 Cal.App.2d

256, 265.) Defendant’s offer of proof for an evidentiary

hearing, presented at his motion for a new trial, was

totally inadequate. An offer of proof must be specific

in its indication of the purpose of the testimony, the

name of the witness, and the content of the answer

to be elicited. (Witkin, Cal. Evidence (2d ed. 1966)

Introduction of Evidence at Trial, § 1311, p. 1212.)

Defendant merely stated that it “would be [his]

desire to call Mr. Hayes and those personnel employed

by Mr. Hayes who also used the County automobile.”

After the court denied his reauest for an evidentiary

hearing, he then stated that he “did not propose to

limit the scope of the interrogation to Supervisor Hayes

— =

and his deputies, but I had intended it to be broadened

to include the testimony of the Marshal deputies who

did the driving, and also of the investigators and

Assistant or Deputy District Attorneys who made the

investigation into this matter and who made the deter-

mination not to prosecute Supervisor Hayes.” We have

no way of knowing what the evidence at the requested

hearing would have shown; however, we do know that

it would be mere speculation to say that defendant’s

vague and nebulous offer of evidence would show

actual and intentional discrimination in the enforcement

of the statute in question. No indication whatsoever

was given as to what testimony would be elicited

from any of the individuals that defendant proposed

to call. “[A]n equal protection violation does not

arise whenever officials ‘prosecute one and not [an-

other] for the same act’ (cf. People v. Montgomery,

supra, 47 Cal.App.2d 1, 13); instead, the equal pro-

tection guarantee simply prohibits prosecuting officials

from purposefully and intentionally singling out individ-

uals for disparate treatment on an invidiously discrimi-

natory basis.” (Murguia v. Municipal Court, supra,

at p. 297.)

4. Defendant further contends that as to Count

III, he did not misappropriate “public moneys” within

the meaning of Penal Code section 424, subdivision

1, since his conviction was based upon the “use of

a county car and the services of a driver on county

time,” and services do not constitute public moneys.

This contention is without merit. Evidence was pre-

sented showing that the cost to the county for Baraldi’s

services and the operation of the county vehicle while

transporting Hayes, his family and staff, amounted

to $1,956.23.

—20—

In People v. Holtzendorff, 177 Cal.App.2d 788,

several employzes of the Housing Authority were sent

home by defendant to work on a campaign and were

paid for this labor from Housing Authority funds.

Although the court ruled that the moneys (salaries)

misappropriated were not public moneys because they

did not belong to the state or any political subdivisions,

the court stated at page 806: “The defendant argues

that if anything was taken from the Authority it was

services, not money. But the services of these typing

employees was not a commodity paid for and received

and then diverted from its authorized purpose. It was

the Authority's money that was appropriated and it

went for services already rendered, but not to the

Authority, nor for any use or purpose in the lawful

execution of defendant’s trust.” (Emphasis added. )

As in Holtzendorff, the services of the deputy were

not a commodity paid for and received and then divert-

ed from their authorized purpose. Here, defendant as

a county officer misappropriated county funds (sala-

ries) for personnel performing activities which were

clearly outside the scope of their proper duties. Under

such circumstances the trial court properly found that

the transportation of Hayes, his family and staff resulted

in a substantial monetary loss to the county by reason

of the payment of the deputies’ salaries while perform-

ing these improper tasks and that this constituted

@ misappropriation of public moneys within section

424. subdivision !.

In a narrower vein, defendant argues he did not

pay Baraldi out of moneys entrusted to him because

it was the county controller who actually paid Baraldi.

Thus, while it micsht have been a criminal offense

enliven

under Penal Code section 504,° it is not a violation

of Penal Code section 424, subdivision 1. The same

defense was raised in People v. Qui Mei Lee, supra,

48 Cal.App.3d 516. Defendant was charged under sec-

tion 424, subdivision | of the Penal Code as an aider

and abettor of one Barber, the principal. Barber, as

Medical Director of San Joaquin County, approved

invoices for medical and laboratory services provided

to the county by private physicians and laboratories.

These invoices were automatically paid by the county

auditor. Barber approved false invoices and through

a complicated scheme collected the moneys from these

invoices himself. The court, beginning on page 522,

said: “Indeed, the Dillon |People v. Dillon, 199 Cal.

1] case refutes defendant’s argument that, within the

meaning of section 424, a public officer is not ‘charged

with the receipt, safekeeping, transfer, or disbursement

of public moneys’ if his duties merely include control

thereof as distinguished from possession. Speaking of

section 424, the Dillon court said, ‘It is clear that

said section has to do solely with the protection and

safekeeping of public moneys . . . and with the duties

of the public officer charged with its custody or control.

... (199 Cal. at p. 5.) (Italics added.) . . . The

court further noted in Dillon that the mere fact that

the defendant might have been prosecuted under the

®Penal Code, § 504, provides as follows: “Every officer

of this State, or of any county, city, city and county, or

other municipal corporation or subdivision thereof, and every

deputy, clerk, or servant of any such officer and every officer,

director, trustee, clerk, servant, or agent of any association,

society, or corporation (public or private), who fraudulently

appropriates to any use or purpose not in the due and lawful

execution of his trust, any property which he has in his posses-

sion, or under his control by virtue of his trust, or secretes

it with a fraudulent intent to appropriate it to such use or

purpose, is guilty of embezzlement.”

—22—

more general statute, section 504, was no bar to his

being prosecuted under the more specific provisions

of section 424 (Ibid. )

“No express language in section 424 restricts its

application to cases where the public officer’s duties

include the possession of public funds. The history

of section 424, as reviewed in the Dillon case, leaves

no doubt that the section was also intended to cover

instances where the officer was merely charged with

the duty of controlling such funds.

“Through his approval of the invoices, and through

his receipt of the local health district and state payments

which he was obligated to transfer to the accounts

of the county medical facility payees, Barber controlled

‘the receipt, safe-keeping, transfer, or disbursemeat of

public moneys” as required for section 424 tc apply.

(Cf. People v. Dillon, supra, at p. 4; People v. Holtzen-

dorff (1966) [supra|, 177 Cal.App.2d 788, 801 [2

Cal.Rptr. 676]; People v, Schoeller (1950) 96 Cal.

App.2d 55, 56-59 [214 P.2d 572].) Within the mean-

ng of section 424, it was not necessary that Barber

be ‘charged’ with those duties by statute. (See People

v. Schoeller, supra, at pp. 56-58.)”

5. Defendant also contends that his conviction on

Count III was in error because providing transportation

was “within the Marshal’s authority,” and if defendant

abused that discretion the remedy should have been

administrati ‘e (censure, suspension, or demotion), but

not criminal prosecution. He also asserts that the trans-

portation of Hayes was “serving to promote the ac-

complishment of the principal purposes of the marshal’s

office.” The evidence, however, shows that defendant

did not have complete authority to provide unlimited

— =

transportation and chauffeuring, and that the transporta-

tion of Hayes’ family and staff did not even have

an indirect relationship to county business.

Robert Fraschetti, an administrative analyst in the

Chief Administrative Office (C.A.O.) for the county,

testified that transporting dignitaries “is not an accepted

practice,” and from a budgetary standpoint, the use

of county vehicles would not be acceptable; that all

the vehicles in the marshal’s department are county

property or subsidized out of the county general fund;

and that “[a|ll reasons for transporting people, for

the use of vehicles, must have the approval of the

C.A.O. and the Board of Supervisors.” Fraschetti further

stated that when he investigated the marshal’s depart-

ment use of vehicles, he was not shown any transporta-

tion request forms.

Eddy Tanaka, chief analyst for the C.A.O., testified

that it was county policy to have all travel, including

that pertaining to deputy marshals, approved by the

C.A.O. In August 1972 the county policy pertaining

to the transportation of dignitaries was that they were

escorted if it was in direct relationship to county busi-

ness. Tanaka further testified that in August 1972

he was not aware that the marshal’s department was

using personnel and vehicles to transport members of

the State Legislature and other dignitaries around Los

Angeles County with some frequency. To his knowledge

no approval was ever given to the marshal’s department

in 1971 and 1972 to undertake a program of trans-

porting dignitaries on county time. He also stated that

in 1971 and 1972 the Sheriff's department and the

district attorney received approval in advance from

either the C.A.O. or the Board of Supervisors for

activities described as legislative advocacy.

—24—

From the evidence presented, as discussed supra,

the trial court properly found that “the transportation

of Hayes, done with the frequency that it was and

in the political context of the time, was so significantly

beyond the scope of courtesy commonly extended mu-

tually by public officials that no reasonable man would

conclude other than that this activity was without au-

thority of law.”

Defendant’s contention that he did not know the

extent of the Hayes transportation is totally without

merit. Deputy Baraldi’s assignment was given to him

directly by defendant for the period from January

to the latter part of August 1972. Furthermore, when

the investigation began, defendant went directly

to Hayes’ transportation documents and ordered them

removed from the records. Defendant’s actions cannot,

as defendant argues, be categorized as merely an

“abuse of discretion”. From the evidence presented

‘** was not unreasonable for the trial court to have

concluded that defendant was guilty of a violation

of subdivision 1, section 424, on count III.

6. Defendant's last contention regarding count III

is that “|t]he standard employed by the Court in

applying Section 424(1) was so vague that it denied

{[defendant| due process of law.” He states that statutes

must give citizens fair notice of what conduct constitutes

a crime, and section 424 has never been applied to

misappropriation of services.’ He thus argues there

was no definable standard for the court’s finding that

the free transportation of Hayes was “significantly be-

7He cites Papachristou v. City of Jacksonville, 405 U.S.

156 and Grayned v. City of Rockford, 408 U.S. 104 to the

effect that it is a principle of due process that an enactment

is void if its prohibitions are not clearly defined.

—— -

otra eae Ni ase tia tne nee shin ares Ran scat av

— =

yond the scope of courtesy commonly extended mutually

by public officials.” We do not quarrel with the rule

of law cited by defendant, but it does not aid him

here. The law, including the cases cited by defendant,

states that the ordinance must be so vague that it

fails to give a person of ordinary intelligence a reason-

able opportunity to know what is prohibited. The ordi-

nance will be upheld if its meaning is reasonably as-

certainable (see 1 Witkin, Cal. Crimes (1963) section

24, p. 28.) The trial court here, as well as the trial

courts in Holtzendorff and Qui Mei Lee, had no diffi-

culty in interpreting the statute. Clearly, it is a mis-

appropriation of public funds to use publicly owned

vehicles for unauthorized private use. It was reasonable

for the trial court to have found that defendant knew

his conduct was forbidden by the statute. Evidence

(discussed infra) showed defendant personally, and

with the aid of his colleagues, removed evidence of

these transactions from official county records to prevent

such conduct from coming to light. Neither the statute

nor the court’s interpretation of it are unconstitutionally

vague.

7. As to count V, defendant contends that his

conviction must be reversed because (1) the Legisla-

ture “did not intend to make it a crime to destroy

public records without any fraudulent intent”; (2) that

the entries were not false; (3) that destroying records

may violate subdivision 4 but not subdivision 3 of

section 424; (4) that the accounts did not involve

public moneys and (5) that there was “discriminatory

prosecution” since the conduct in count V arose out

of activities on behalf of Hayes. As to the question

of fraudulent intent, it is clear that fraudulent intent

or an intent to deceive is not required under section

—_— =

424, subdivision 3. (People v. Johnson, 14 Cal.App.

2d 373, 379-381.)

Defendant’s contention that he did not make any

false entries is contradicted by the evidence, as discussed

supra in Natalie Scotton’s testimony. It is clear that

the documents submitted to the payroll section were

inaccurate since much of the overtime shown thereon

had been “manufactured” to cover up the deputies’

participation in improper activities. Scotton further stat-

ed that once these reports of overtime were submitted

to the payroll department, nothing further was checked

by the county.

There is no merit to defendant’s assertion that the

trial court found defendant guilty on count V solely

because records were destroyed (thereby violating sub-

division 4, not subdivision 3). The trial court merely

stated that the destruction of records had been estab-

lished in addition to the fact that the records had

been altered. Clearly, defendant’s conduct came within

the proscription of subdivision 3.

Defendant’s argument that the falsified accounts did

not relate to public funds is erroneous. (See discussion

of count III, supra.) The adding of overtime and

the falsification of the time records resulted in a mone-

tary loss to the county by reason of improper payment

of salaries for unauthorized activities of county per-

sonnel.

Nor was defendant’s conviction the result of “discrim-

inatory prosecution.” (See discussion, count III, supra.)

No evidence was presented showing that Hayes or

anyone else was involved in retrieving time records,

ordering them to be altered and resubmitting a second

series of false time reports to the payroll department

—

eee ae rmatetest Datatte endialee sikt e§ beet an

Gee

in order to cover up the deputies’ activities at the

marina. This was only done by defendant.

8. Regarding count VII, defendant contends there

was no evidence showing that he either secreted or

destroyed the radio logs which were removed from

the county records and archives in violation of Govern-

ment Code section 6200." He also asserts that, even

assuming the evidence shows this, the radio logs are

not public records and defendant, as Marshal, had

the authority to destroy the radio loys as he saw

fit.

Concerning his first contention, the evidence pre-

sented (as discussed supra, under “Count VII—Candi-

date Driver Transaction—Radio Logs”) convincingly

demonstrated that defendant destroyed, removed, or se-

creted radio logs, and further comment by us on this

point is unnecessary.”

8Government Code section 6200 provides:

“Every officer having the custody of any record, map,

or book, or of any paper or proceeding of any court,

filed or deposited in any public office, or placed in his

hands for any purpose, who is guilty of stealing, wilfully

destroying, mutilating, defacing, altering or falsifying, re-

moving or secreting the whole or any part of such record,

map, book, paper, or proceeding, or who permits any

other person to do so, is punishable by imprisonment

in the State prison not less than one nor more than

14 years.”

*The trial court, on this issue, stated:

“The . . . question is one of credibility. The People’s

theory of the evidence suggests that the defendant syste-

matically gathered together certain records relating to trans-

portation activities in his office and—in anticipation of

their being sought by the prosecutor—either secreted or

destroyed them. The defendant maintains he collected the

records specifically to preserve them and that they there-

after were stolen from him.

“My view of the record requires me to reject the de-

fendant’s testimony on this issue. I find the defendant

guilty as charged in Count VII.”

— =

Defendant’s principal argument on count VII is that

the maintenance of radio logs is not required by an

ordinance or statute, therefore, because the Marshal

has control of all records of his office, he had the

authority to do with the records as he saw fit."

This argument is meritless. A public official has no

right to treat official government records of an office,

such as the Marshal’s Department, as his own. (See

People v. Thompson, 122 Cal.App.2d 567, 571-572;

People v. McKenna, 116 Cal.App.2d 207, 209-211;

People v. Pearson, 111 Cal.App.2d 9, 16-19.) In People

v. Pearson, supra, a captain in the sheriff's department

destroyed records he had prepared while making several

vice investigations. On page 18, the court stated: “The

contention that the papers removed were not public

records is a mere quibble . . . A paper written by

a public official in the performance of his duties or

in recording the efforts of himself and those under

his command . . . is a public record and is properly

in the keeping of the office. (Citations).”"

As stated in People v. Shaw, 17 Cal.2d 778, 811

and the authorities cited therein, “‘In order that an

entry or record of the official acts of a public officer

shall be a public record, it is not necessary that such

record be expressly required by law to be kept, but

it is sufficient if it be necessary or convenient to

the discharge of his official duty. “Any record required

by law to be kept by an officer, or which he keeps

Defendant also argued that the court confused radio logs

with trip tickets and the latter are clearly not public documents.

The record does not substantiate defendant’s contention.

11Defendant claims Pearson is inapplicable because a captain

in the sheriff's department has no legal authority to destroy

any records, while he, in contrast, as marshal, was entrusted

with control of all records and had authority to treat them

as he did. His argument is not persuasive.

—~ S

as necessary Oi convenient to the discharge of his

official duty, is a public record.” .. .’”

Defendant’s next argument as to count VII relates

to “discriminatory prosecution.” However, no evidence

was introduced at trial showing that Hayes even sug-

gested the removal and destruction of these ‘documents.

There was not one scintilla of evidence indicating

Hayes could have been charged with a violation of

Government Code section 6200. Moreover, defendant

did not raise this as a defense during the trial. (See

discussion on this point under Count III, supra. )

9. In count VIII, defendant was charged with con-

spiring with others in his office to violate section 6200

of the [Business and Professions Code] (destroying

or secreting radio logs). He was found not guilty

on this count; however, hearsay testimony given by

his alleged coconspiratorgs (Castaneda, Spencer, Alex-

ander, Baraldi, and Johnson) was admitted under the

coconspirator exception to the hearsay rule (Evid. Code,

§ 1223). Defendant claims one statement, made by

Castaneda to Baraldi on November 15 about the radio

logs that “They’ve been destroyed” was inadmissible

under the rule enunciated in People v. Leach, supra,

15 Cal.3d 419.”

2In Leach, the court on page 423 stated:

“We hold herein that if hearsay evidence of the declara-

tions of coconspirators uttered after the attainment or aban-

donment of the principal objective of a conspiracy is to

be admitted for the truth of the matters asserted on the

ground that the declarations were made during and in

furtherance of a ‘continuing’ conspiracy, there must be

adduced otherwise admissible evidence which is sufficient

to establish prima facie, independently of the hearsay evi-

dence in issue, that the conspiracy continued in existence

through the time the declarations were made. Under this

holding we find that hearsay evidence of certain coconspira-

tors’ declarations was erroneously admitted at the trial

(This footnote is continued on next page)

alii

If there was error it was clearly non-prejudicial.

Abundant evidence was properly admitted concerning

the removal and secreting of incriminating radio logs.

The trial court was more concerned with this aspect

of the charge than it was with any destruction of

the records. It said, “[t|he People’s theory of the

evidence suggests that the defendant systematically gath-

ered together certain records relating to transportation

activities in his office and—in anticipation of their

being sought by the prosecutor—either secreted or de-

stroyed them.” (Emphasis added.) Merely secreting the

records is a violation of the section, and the statement

of the court emphasizes it was persuaded by the evi-

dence that showed defendant was trying to hide the

records from the prosecutor.

10. On count IX, defendant contends that his con-

victim “was the result of coerced statements and there-

fore must be reversed with instructions to dismiss.”

He argues that he was “coerced” into making statements

to the Marshal’s Committee of the Municipal Court

judges in March 1973 concerning the incident with

the civil service rating board of three police lieutenants,

and that this information ultimately came to the at-

tention of the prosecutor because of this meeting. There-

fore, “the testimony of the three lieutenants was the

product of the involuntary statement.”

However, no evidence was introduced showing that

defendant was forced in any way to answer the judges’

of these causes. We also find, however, that such error

was not prejudicial to either of the defendants and accord-

ingly affirm the judgments of conviction.”

—

questions. He merely argues in his brief that he “prob-

ably” would have been fired. Further, there is no

evidence to support defendant’s assertion that the prose-

cutor would not have called the three lieutenants as

witnesses but for his statements to the judges. Defend-

ant’s argument on this issue is sheer speculation. Nor

is there any evidence that any statement he made

was incriminatory; nowhere does defendant state the

actual content of his discussion with the judges.

A review of the record reveals that there was sub-

stantial evidence showing that defendant was guilty

of a violation of Government Code section 31114,

subdivision 3, in that he furnished special and secret

information for the purpose of either improving or

injuring the prospect of persons about to be examined

under a county civil service system and that his convic-

tion was not the result of a “coerced statement” (see

discussion supra “Count IX—Civil Service Board”).

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

Hastings, J.

We concur:

Kaus, P. J.

Ashby, J.

Los Angeles Superior Court No. A-304507

Richard A. Gadbois, Jr., Judge.

Attorney for Appellant: Richard H. Levin.

Attorneys for Respondent: Evelle J. Younger, Attor-

ney General, Jack R. Winkler, Chief Assistant Attorney

General, S. Clark Moore, Assistant Attorney General,

Norman H. Sokolow, and Lawrence P. Scherb II, Dep-

uty Attorneys General.

In the Court of Appeal of the State of California,

Second Appellate District, Division Five.

People of the State of California, Plaintiff and Re-

spondent, vs. Timothy Sperl, Defendant and Appellant.

2d Crim. 26259, LASC. A-304507.

Filed: February 19, 1976.

THE COURT:

Good cause appearing therefor, the opinion filed

on January 21, 1976, is modified as follows:

On page 4, second paragraph, last line, add after

“$11,185.99” (People’s Exhibit 1), and the total figure

after giving credit for “questionable time” was approxi-

mately $5,024.

The clerical error on page 16, line 16, is corrected

as follows: Such extensive evidence of .. .

The petition for rehearing is denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.