Stark v. Super. Ct. 6/15/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C051073

Case Date: 09/13/2006

Preview:Filed 6/15/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter) ----

ROBERT E. STARK, Petitioner, v. THE SUPERIOR COURT OF SUTTER COUNTY, Respondent; THE PEOPLE, Real Party in Interest. C051073, C051074 (Super. Ct. Nos. CRMS051001, CRMS051031)

RONDA G. PUTNAM, Petitioner, v. THE SUPERIOR COURT OF SUTTER COUNTY, Respondent; THE PEOPLE, Real Party in Interest. C051075 (Super. Ct. No. CRMS051030)

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ORIGINAL PROCEEDINGS in mandate. Peremptory writ issued.

Ted H. Hansen, Judge.

Rothschild, Wishek, Chastaine & Sands, M. Bradley Wishek; Marilyn Fisher, for Petitioner Robert E. Stark. Blackmon & Associates, Clyde M. Blackmon, Melinda J. Nye; Marilyn Fisher, for Petitioner Ronda Putman. No appearance for Respondent. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor, Mary Jo Graves, Senior Assistant Attorney General, Michael A. Canzoneri and Janet Neeley, Supervising Deputies Attorney General, Clifford E. Zall, Deputy Attorney General, for Real Party in Interest. This writ proceeding arises out of a turf battle between some of the elected officials in Sutter County (the County) over accounting matters. That battle has resulted in a 13-count

criminal indictment against the auditor-controller of the County, Robert E. Stark, as well as accusations under Government Code section 3060 against both Stark and his assistant, Ronda G. Putman, seeking to remove them from office for willful misconduct. Stark and Putman moved to set aside the grand jury's indictment and accusations on various grounds. part, the superior court denied those motions. For the most As will be

shown, we conclude the superior court erred when it refused to set aside some of the criminal charges against Stark and the accusation against Putman. court was correct. Otherwise, however, the superior

We will issue a peremptory writ of mandate

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to correct the court's errors and otherwise allow the matter to proceed against Stark. FACTUAL AND PROCEDURAL BACKGROUND What follows is a general overview of the factual and procedural background of this writ proceeding. Further detail

of the underlying facts is set forth below in the discussion section.1 Stark has been the auditor-controller of the County

since 1985. In the fall of 2004, Larry Combs, the county administrative officer (who is appointed by the board of supervisors to manage the County), became aware that Stark was "making arbitrary changes to policies, making some accounting decisions that did not make sense and interfering with the operations of the county." As a result, Combs prepared a report to the board

entitled, "Analysis of Performance of Auditor-Controller & Recommendation for Action," which he presented to the board on September 7, 2004. That report alleged that "serious problems Among those

exist with respect to [Stark's] job performance." problems were the following:

(1) Stark filed the final budget

for fiscal year 2003-2004 in June 2004, six and one-half months late; (2) Stark believed he had the authority to unilaterally amend the County budget, when state law limits that authority to the board of supervisors; (3) Stark was asserting the authority

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Because this proceeding seeks to challenge the legal sufficiency of the indictment and the accusations, we set forth the facts in the light most favorable to the grand jury's decision to indict and accuse Stark and Putman. 3

to approve the rates some County departments, such as the information technology (IT) department, were charging other County departments to recover the cost of services provided; (4) in January 2003, Stark withheld overtime pay from the County's firefighters based on an erroneous interpretation of the County's memorandum of understanding (MOU) with them; and (5) in the final budget for 2003-2004, which Stark belatedly filed in June 2004, Stark unilaterally transferred money from the County's general fund reserve to the Sutter County Waterworks District #1. As a result of Combs's report, the board of supervisors took various actions with respect to Stark. One such action The IT

related to the setting of rates for the IT department.

department gets a small amount of its revenue by providing services for outside agencies, but gets the majority from services provided to other county departments, for which the department is paid through inter-fund charges (transfers from one County fund to another). Before September 2004, the billing

rate that the IT department charged to other county departments for its services was set through "an informal process between the department, [Stark,] and [the county administrative officer's] office." Then, Stark began asserting the authority As a result, at Combs's

to disapprove the billing rate.

request, the board delegated to Combs the power to set the IT department's billing rate. On March 3, 2005, the grand jury began an investigation into Stark's conduct. The investigation continued through early 4

May.

On May 4, the grand jury returned a 13-count criminal The grand jury

indictment against Stark (case No. CRF051001).

also returned a 15-count accusation against Stark (case No. CRMS051031) and a two-count accusation against Putman (case No. CRMS051030) under Government Code section 3060 for willful misconduct in office. The charges in the indictment and

information related to some of the incidents raised in Combs's report to the board of supervisors in September 2004, as well as other incidents (all of which will be further detailed below). In July 2005, Stark and Putman filed motions to set aside the indictment and the accusations. In a consolidated

memorandum of points and authorities, they argued, among other things, that the evidence presented to the grand jury was insufficient as a matter of law to support the indictment and the accusations because there was no evidence they purposefully refused to follow the law. Following a hearing in October 2005, the superior court set aside the first count of the indictment and counts two and thirteen of the accusation against Stark, but let the remaining charges stand. Stark and Putman sought review in this court by

filing virtually identical petitions for writs of mandate or prohibition. (Stark filed two petitions: one relating to the

criminal indictment and one relating to the accusation against him.) On November 23, 2005, this court summarily denied all

three petitions. Stark and Putman petitioned for review in the Supreme Court. On February 22, 2006, the court granted their petitions, 5

consolidated the three cases, and transferred the matter back to this court "with directions to vacate its order denying petitions for mandate and prohibition and to issue an order directing real party in interest to show cause before that court why the relief sought in the petition should not be granted." This court issued the orders to show cause as directed on March 8, 2006. By stipulation, on March 21 we consolidated the

three petitions and agreed to decide "[t]he matters raised in the petitions . . . upon the briefs previously filed in the superior court and the record of those proceedings." Accordingly, we now turn to the issues raised in Stark's and Putman's motions to set aside the indictment and the accusation. DISCUSSION I The Indictment We begin by addressing Stark's arguments challenging the criminal indictment against him.2 A Standard Of Review On a criminal defendant's motion, the trial court must set aside an indictment when "the defendant has been indicted without reasonable or probable cause." (Pen. Code,

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