PEOPLE v. HUBBARD

Respondent’s Petition for Review

Cal.February 11, 2014

THE PEOPLE, SUPREME COURT Plaintiff and Respondent, Case No. § FILED Vv. JEFFREY HUBBARD, FEB 11 2014 Frank A. McGuire Clerk Defendant and Appellant. __ Deputy Second Appellate District, Division One, Case No. B239519 Los Angeles County Superior Court, Case Nos. SA075027, BA382926 The Honorable Stephen A. Marcus, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCEE. WINTERS Senior Assistant Attorney General MARGARETE,. MAXWELL Supervising Deputy Attorney General ERIC E. REYNOLDS Deputy Attorney General State Bar No. 227469 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2868 Fax: (213) 897-2263 Email: Eric.Reynolds@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Tssues Presented ..........ccccscecccececeeceesnneeeeereneneenseeeeeeenneeeeeeeeesessesaseaeeeeeneeenegs I Statement of the Case......ecccccesesseeeesteescesteseseeeees eeusasssessssseetssesceeseees 1 Reasons for Granting ReViICW.........ccceeeseeerseetsscceeeeesnseeesenesssaeeeseeneeeesy4 | This court should grant review because the scope of the term “officer” under Penal Code section 424, subdivision (a), is an issue of statewide importance..............4 IL. Review should be granted to resolve a conflict between the Court of Appeal’s opinion and the decision in Groat over the degree of control necessary for MiSAPPFOPTiatioNn ........ceeeee eee ener eeeeee teeter tee teeee7 Conclusion ..........ccceccccssssecstsecesteeeseneeeeeneeseneedesennesteeneeeeseeseuseenseersenseeeenaas 12 TABLE OF AUTHORITIES | Page CASES Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257 oo.ieeeees etscecseeceeeeseesneeseeesneesneesseeeeaeey 6 People v. Aldana (2012) 206 Cal.App.4th 1247 oceeseceeeeeeees weceeevesaaeesenneeees 1,9, 10 People v. Crosby (1956) 141 CalApp.2d 172 oo. cieeccsesesserieeeneeeeeeriesenesenesteretieeey 6 People v. Groat (1993) 19 Cal.App.4th 1228 oo. cccesccseereeneeseeeesneenesereeerespassim People v. Schoeller (1950) 96 CalApp.2d 55 oescccceerreneecneeteesieciecneesnerteeeees 6 Stark v. Superior Court (2011) 52 Cal.4th 36800secers eeeeseeeeneesneeneenseens 6,9, 11 STATUTES Educ. Code, § 35035...See ceeanaeneeeececececceeeeeeeesauaaaaananaaedaaaaqaeeaaaaees 6 Pen. Code, § 424.......... veeeeeceeeeeeeaeeeecsaeeeetenseecesececnaeeeesenseeeteneniaspassim COURT RULES Cal. Rules of Court, rule 8.500...............eeveceeuseuaueesecesenenaseeserseeeees 1,7, 11 Cal. Rules of Court, rule 8.504......cccccecsseseeneeseessieensssiessseessseessess 1 li TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: The People of the State of California, plaintiff and respondentin the above-entitled action, hereby petition this Honorable Court to grant review in this case, pursuant to California Rules of Court, rules 8.500 and 8.504, following an unpublished decision of the California Court of Appeal, Second Appellate District, Division One, case number B239519,filed on December31, 2013, reversing appellant’s convictions for misappropriation of public funds (Pen. Code, § 424, subd. (a)(1)). (Exh. A.) ISSUES PRESENTED 1. Does a superintendentof a public school district (i.e., an officer of a district of this state), qualify for prosecution for misappropriation of public funds under Penal Code section 424 without a further showing that the officeris ‘charged with the receipt, safekeeping, transfer, or disbursement of public moneys”? 2. If Penal Code section 424 applies only when an officeris “charged with the receipt, safekeeping, transfer, or disbursement of public moneys,” must the officer have final “approval authority” of the expenditure (Exh A. at pp. 6-8; People v. Aldana (2012) 206 Cal.App.4th 1247, 1254) rather than “some degree of control” over the disbursement of public funds (People v. Groat (1993) 19 Cal.App.4th 1228, 1232) for the officer to qualify for prosecution for misappropriation of public funds? STATEMENT OFTHE CASE Appellant was the Superintendent of the Beverly Hills Unified School District (‘BHUSD”) from July 1, 2003, through June 6, 2006. (7RT 1550.) The district had a five-memberboard that held public board meetings twice a month. Appellant attended all board meetings. Prior to each board meeting, the superintendent’s office published an agendasetting forth the items to be covered during the meeting. The board held closed session meetings before the public sessions to discuss certain confidential topics such as personnel, litigation, and student matters. All increases in employee compensation, including automobile allowances and stipends, had to be approved by the board. Any board decision regarding employee compensation wasdiscussed first in closed session, but the decision always had to be ratified in open session in orderforit to take effect. In order for anythingto beratified in open session,it hadto be listed on the board agenda. After every public meeting, minutes were published summarizing all of the board actions that took place during the meeting. (3RT 433-437.) Karen Christiansen was the Director of Planning and Facilities for the BHUSD. In 2005, her employment contract with the district stated her salary was $113,000 per year and provided for a $150 per month car allowance. The contract did not provide for any additional stipends. The contract could only be amended with board approval. (RT 440-441.) Melody Voyles worked at the BHUSDasa Payroll Benefit Specialist at the district office. She was responsible for the payroll and benefits for district employees. Ifa district employee received a change in pay or benefits, Voyles would typically be notified by a report or memo from the human resources department. (3RT 359-363.) In a memo dated September — 29, 2005, appellant directed Voyles to pay Christiansen a $500 per month car allowance retroactive to September 1, 2005. Appellant did not follow the established protocol for increasing Christiansen’s compensation. Christiansen began receiving the increased car allowance in October 2005. (3RT 369-373.) On February 6, 2006, appellant sent another memo to Voyles directing her to pay a $20,000 stipend to Christiansen. ' Voylesentered the information into the payroll system and Christiansen received two $10,000 stipend payments for a total of $20,000. Thefirst $10,000 stipend was paid on February 9, 2006, and the second was paid on February 16, 2006. RT 365-368, 375.) Two BHUSDboard memberstestified that appellant never sought board approval to give Christiansen a $500 per month car allowanceor a $20,000 stipend. The board never approvedthe stipend or the increased car allowance. The board did not know about thepayments to Christiansen until 2009 when the superintendentat the time informed the board of irregularities.” (RT 432, 441-442; 4RT 608-609, 614-619; SRT 962-975.) Following a jury trial, appellant wasfoundguilty of two counts of misappropriation of public funds (Pen. Code, § 424, subd. (a)(1)). (2CT 287-289.) Thetrial court placed appellant on three years of formal probation with various terms and conditions. (2CT 316-318.) On appeal, appellant contended that he was not a person “charged with the receipt, safekeeping, transfer, or disbursement of public moneys” within the meaning of Penal Code section 424, and he therefore could not be foundguilty of violating that section.’ Respondent countered that appellant was the superintendent of the BHUSD;thus, he wasan officer of ’ BHUSD’s Assistant Superintendent of Human Resourcesatthe time testified that he never received or saw either of the memos regarding Christiansen’s increased compensation. (4RT 717-721.) * Appellant testified that he did not know whether the payments to Christiansen were ever approved by the board. (7RT 1602-1603.) > Appellant raised several other claims on appeal; however, the Court of Appeal did not reach the merits of those claims. the school district. Since appellant was a public officer, he fell within the _ ambit of Penal Code section 424 on that basis alone. Respondent also ~ argued that the evidence established that appellant exercised some degree of control over public funds, therefore, he was “a person charged with the receipt, safekeeping, transfer, or disbursement or public moneys.” (See People v. Groat (1993) 19 Cal.App.4th 1228, 1232.) The Court of Appeal rejected respondent’s arguments and held that appellant couldnotbe criminally liable under Penal Code section 424 for the increased car allowance and stipend paid to Christiansen because the “approval authority” to make the payments rested with the BHUSDboard, rather than with appellant. (Exh. A at p. 10.) REASONS FOR GRANTING REVIEW I. THIS COURT SHOULD GRANT REVIEW BECAUSE THE SCOPE OF THETERM “OFFICER” UNDER PENAL CODE SECTION 424, SUBDIVISION(A), IS AN ISSUE OF STATEWIDE IMPORTANCE This case presents an issue of broad public importance: the interpretation of the scope of Penal Code section 424, subdivision (a)(1), whichstates: Each officer of this state, or of any county, city, town, or district of this state, and every other personcharged with the receipt, safekeeping, transfer, or disbursement of public moneys, who ... [w]ithout authority of law, appropriates the same, or any portion thereof, to his or her own use,or to the use of another ',.. 1s punishable by imprisonmentin the state prison for two, three, or four years, and is disqualified from holding any office in this ‘state. This case involves whether a schooldistrict superintendent, who was responsible for the day-to-day business and operations ofthe district, can be found criminally liable for misappropriating public funds entrustedto the district, on the basis that he is an “officer.” Attrial, the prosecution submitted a proposed jury instruction on the elements of the crime of misappropriation of public funds. The instruction stated that the first element that the prosecution had to prove wasthat appellant was“an officer of this state, or of any county, city, town, or district ofthis state, or was a person charged withthe receipt, safekeeping, transfer, or disbursement of public moneys.” Appellant’s trial counsel stated that he had no objection to this portion of the instruction.’ (7RT 1654.) The trial judge instructed the jury in accordance with the proposed instruction. (2CT 303-304; 8RT 1833-1834.) Appellant’s defense attrial wasthat he did not have the requisite knowledgeandintent to commit the crime and that the prosecution was not commenced within the statutory | period. Hedid not argue that he was not subject to prosecution underthe statute on the basis that he was not an “officer” or “a person charged with the receipt .. . of public moneys.” (8RT 1862-1902.) On appeal, respondent argued that because appellant wasan officer of the BHUSD,hefell within the class of persons subject to prosecution under Penal Codesection 424 on that basis alone. The Court of Appeal rejected that argument, stating that to be liable under the statute, a public officer must also be “charged with the receipt, safekeeping, transfer, and disbursement of public moneys.” (Exh. A at p. 8.) The Court of Appeal ignored the plain, commonsenseconstruction of Penal Code section 424. Thestatute lists the persons subject to the statute and includesofficers and “every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys.” (Pen. Code, § 424, subd. (a).) The Court of Appealreasonedthat the “charged with the receipt...” language of the statute modified both “officer” and “every * Counsel objected to a separate portion ofthe instruction regarding the intent element. (7RT 1654-1664.) other person.” (Exh. A at p. 8.) However, such a construction of the statue renders the portion ofthe statute describing “officer” mere surplusage. (See Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 [“[w]ell-established canonsof statutory construction preclude a construction which renders a part of a statute meaningless or inoperative”].) Under the Court of Appeal’s interpretation, the entire portion of the statute preceding “every other person”is rendered meaningless. Such a narrow interpretation is counterto the legislative intent that Penal Code section 424 be “construed very broadly.” (See Stark v. Superior Court (2011) 52 Cal.4th 368, 400.) To give meaning to each word and phrase in the statute, Penal Code section 424 should be interpreted aslisting the various people subject to the statute, i.e. “each officer of this state. . .” or a “person charged with the receipt... of public moneys.” (See People v. Groat, supra, 19 Cal.App.4th at pp. 1231-1232 [“To be convicted under section 424, a defendant must be a public ‘officer’ or a ‘person charged with the receipt, safekeeping, 399 transfer, or disbursement of public moneys’”].) Such a construction ofthe statute would give the words ofthe statue their plain and commonsense meaning and would effectuate the legislative intent to “safeguard the public treasury and ensure public confidence in the state's use of its funds.” (/d. at p. 1232.) As the superintendent of the BHUSD,appellant wasclearly an officer within the purview of Penal Code section 424. A school district superintendentis “the chief executive officer of the governing boardofthe district.” (Educ. Code, § 35035, subd. (a); see People v. Crosby (1956) 141 Cal.App.2d 172, 175 [“There is no doubt that a public administratoris a public officer of a county”); People v. Schoeller (1950) 96 Cal.App.2d 55, 57-58 [secretary of the board ofdirectors ofirrigation district was an officer of the district].) As an “officer of .. . [a] district” appellant was prohibited from appropriating public moneys to his own useorto the use of another without authority of law. (Pen. Code, § 424, subd. (a)(1).) Thus, appellant’s status as an officer of the district meant that he fell within the ambit of Penal Code section 424. No additional showing that appellant was “charged with the receipt safekeeping, transfer, or disbursementof public moneys” was required. Review is therefore warranted in this case “to settle an important question of law” and to provide needed guidanceto public officials, trial | and appellate courts, and law enforcementas to the scope of the word “officer” under Penal Code section 424. (Cal. Rules of Court, rule 8.500(b)(1).) II. REVIEW SHOULD BE GRANTED TO RESOLVE A CONFLICT BETWEEN THE COURT OF APPEAL’S OPINION AND THE DECISION IN GROAT OVER THE DEGREE OF CONTROL NECESSARY FOR MISAPPROPRIATION In addition to being a public officer, appellant wasalso liable for misappropriation as a person “charged with the receipt, safekeeping, transfer, or disbursement of public moneys.” (Pen. Code, § 424, subd.(a).) The Court of Appeal held, however, that because appellant did not have “approval authority” to expend funds, he could not as a matter of law be liable under Penal Code section 424. (Exh. A atp. 10.) This was clearly in conflict with the court’s opinion in People v. Groat, supra, 19 Cal.App.4th 1228, holding that only “some degree” of control over public fundsis required. . In Groat, the Sixth Appellate District held that a managerofa city department whohadability to authorize her own pay violated Penal Code section 424 by submitting time cards indicating time worked or sick when she wasneither at work nor sick but was teaching classes for another employer. (People v. Groat, supra, 19 Cal.App.4th at pp. 1233-1235.) _ Groat held that Penal Code section 424 required only “some degree of control” over public funds: Courts have recognized the Legislature’s intent [in enacting section 424] to hold public officers specially accountable. Those “who either retain custody of public funds or are authorized to direct the expenditure of such funds bear a peculiar and very grave public responsibility, and... courts and legislatures, mindful of the need to protect the public treasury, havetraditionally imposed stringent standards upon such officials. [Citations.]” [Citation.] [{] Because of the essential public interest served by the statute it has been construed very broadly. The state Courts of Appeal have held that “to be charged with the receipt, safekeeping, transfer, or disbursement of public moneys” within the meaning of section 424 requires only that the defendant have some degree ofcontrol over public funds and that control need not be the primary function of defendantin his or herjob. (People v. Groat, supra, 19 Cal.App.4th at p. 1232,italics added.) Bycontrast, the Court of Appeal here disregarded the long-established “some degree of control” standard and essentially invented a new requirementfor a person to be foundliable under section 424—thatthe defendant must have final authority for approving the expenditure. (Exh. A at pp. 9-10.) The Court of Appeal dismissed the “some degree of control” standard described in Groat as “dicta” (Exh. A at pp. 9-10), but that standard wasclearly central to the Groat court’s holding because the court upheld the conviction based on that standard, even if the defendant also had approval authority. Moreover, the court’s adoption of an “approval authority” requirement in this case severely limits the application of Penal Code section 424 because manypublic officials cannot legally expend or disburse funds without authorization from another elected body, such as a school board. Thus, under the court’s reasoning, persons who exercise some control over public funds—control sufficient to convert the funds to their own use or to another’s use—but do not have “approval authority” to expend public funds, could never be found liable for misappropriating public funds. . This caseillustrates why the Court of Appeal’s standardis too restrictive. The fact that appellant did not have authorization from the district board to make the payments to Christiansen is the basis for the misappropriation of public funds charge. In other words,if the board had authorized the payments, he necessarily would not have misappropriated public funds. The lack of board authorization did not makeit impossible for the payments to Christiansen to be made. Indeed, this case demonstrates that payments could be made to employees without board approval; however, the lack of board approval meant that such payments were unauthorized andillegal. Moreover, the Court of Appeal also disregarded thelegislative intent behind section 424, whichis to “hold public officers specially accountable. Those ‘who either retain custody of public funds or are authorized to direct the expenditure of such funds bear a peculiar and very grave public responsibility, and .. . courts and legislatures, mindful of the need to protect the public treasury, have traditionally imposed stringent standards upon suchofficials.” (People v. Groat, supra, 19 Cal.App.4th at p. 1232, quoting Stanson v. Mott (1976) 17 Cal.3d 206, 225.) Indeed, this Court | cited the Groat standard with approvalin discussing the legislative intent: “Because of the essential public interest served by [section 424] it has been construed very broadly. ...’ [Section 424] applies to ‘every other person’ with some control over public funds.” (Stark v. Superior Court, supra, 52 Cal.4th at p. 400, quoting People v. Groat, supra, 19 Cal.App.4th at pp. 1232, 1234, italics added.) The Court of Appealrelied on People v. Aldana (2012) 206 Cal.App.4th 1247, but that decision does not support the court’s holding. In Aldana, the court held that a physician who had submitted false timesheets to a hospital administrator could not have violated section 424, subdivision (a)(3), because he “wasnotable to authorize his own pay.” Thus, he was not a person “charged with the receipt, safekeeping, transfer, or disbursement of public moneys” within the meaning ofsection 424. (Exh. A at p. 7.) The Court of Appeal here compared appellant, the superintendent of the BHUSD,to the physician in Aldana,stating that appellant was required to get board authorization to make the payments to Christiansen: “By sending memorandato payroll and the humanresources department (which undisputedly was the sole party responsible for creating the necessary documents for securing board approval), Hubbard was merely ‘the first step in a process that results in the expenditure of public funds,’ but that is not ‘sufficient to establish criminal liability under section 424 absent approval authority,’ which Hubbard undisputedly did not have.” (Exh.A at p. 7, quoting People v. Aldana, supra, 206 Cal.App.4that p. 1254.) But the Court of Appeal’s comparison of the defendant in Aldana to appellantis inapt. The defendant in A/dana was a hospital employeethat merely signed a blank timesheet and submitted it to his supervisor for completion. (People v. Aldana, supra, 206 Cal.App.4that p. 1254.)° Thus, in Aldana, there was no evidence that the defendant exercised any control over public funds. (/bid.) Its statement regarding approval authority was dicta since the evidence did not evenshow that the defendant had “some control” over public funds. In any event, to the extent People v. Aldana can be read to require that a person have approval authority for an expenditure to establish criminalliability under Penal Code section 424 (see id. at p. > Notably,the hours eventually filled in by the defendant’s supervisor reflected Jess hours than the defendant had actually worked. (People v. Aldana, supra, 206 Cal.App.4th at p. 1257.) 10 1254), its reasoningis counter to the “some control” standard set forth in Groat. (See Stark v. Superior Court, supra, 52 Cal.4th at p. 400.) Andhere, appellant was the superintendent of a school district. He was much morethan “the first step in a process that results in the expenditure of public funds.” (Exh. A at p. 7.) Appellant was the chief executive officer of the BHUSDand wasresponsible for the day-to-day business and operations of the district. As superintendent, appellant was responsible for overseeing the expenditure of BHUSD funds. Heinitiated district expenditures by bringing them to the board for approval. If an expenditure was approved, he was thenobligated to ensure that the payment was made. The BHUSDboardrelied on appellant to spend district funds only on things that had been approved bythe board. Thus, the evidence showedthat he exercised, at the very least, some control over public funds. Asto this case specifically, he directed subordinatestaff to make payments to Christiansen, but he did not follow the standard procedureforinitiating the payments and obtaining board approval. Therefore, while appellant may not have hadfinal approval authority to expend district funds, he certainly exercised some control over public funds. The Court of Appeal’s narrow interpretation of Penal Code section 424 runs counter to the Legislature’s intent to construe the statute broadly and effectively precludes a vast numberofpublic officials from prosecution under the statute. Accordingly, this Court should grant review to secure uniformity of decision andto settle this important question oflaw. (California Rules of Court, rule 8.500(b)(1).) 11 ‘CONCLUSION For the reasons stated, respondent respectfully requests that this Court review the decision of the Court of Appeal. Dated: February 7, 2014 LA2014611652 51453598.doc _ Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MARGARETE. MAXWELL Supervisin uty Attorney, General ERIC E. REYNOLDS Deputy Attorney General Attorneysfor Plaintiffand Respondent 12 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 3,347 words. Dated: February 7, 2014 KAMALAD. HARRIS Attorney General of California Cgd ERIC E. REYNOLDS Deputy Attorney General Attorneysfor Plaintiffand Respondent EXHIBIT A Filed 12/31/13 NOT TO BE PUBLISHEDIN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinionsnotcertified for publication or ordered published, except as specified by rule 3.1115(b). This opinion has not beencertified for publication or ordered published for purposes of rule 8.1115. . IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL — SECONDDIST. FILED SECOND APPELLATE DISTRICT | DIVISION ONE Dec 31, 2013 JOSEPH A. LANE,Clerk THE PEOPLE, B239519 sstahl Deputy Clerk Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. SA075027, BA382926) Vv. JEFFREY HUBBARD, Defendant and Appellant. APPEALfrom a judgmentofthe Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Reversed. Hillel Chodos and Philip Kaufler for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Jeffrey Hubbard of two counts of misappropriation ofpublic funds in violation of Penal Code section 424, subdivision (a)(1).' On appeal, he argues that his convictions must be reversed because, as superintendent of the Beverly Hills Unified School District (the District), he was not “charged with the receipt, safekeeping, transfer, or disbursement of public moneys” within the meaning of section 424. We agree and accordingly reverse his convictions and direct the superior court to dismiss the charges. BACKGROUND The operative consolidated information and indictment,filed on January 3, 2012, charged Hubbard with three counts of misappropriation of public fundsin violation of section 424. The consolidated information and indictment further alleged, pursuant to subdivision (c) of section 803, that although the alleged crimes took place in 2005 and 2006 they were not discovered and could not reasonably have been discovered before September 2009. Hubbard pleaded not guilty and denied all special allegations. The charges weretried to a jury, which found Hubbard guilty on two counts but not guilty on the third. As to the counts on which Hubbard wasconvicted, the jury also foundtrue the allegation that the crimes were not and could not reasonably have been discovered before September 2009. The court suspended imposition of sentence and placed Hubbard on probation for three years subject to various terms and conditions, including that he serve 60 daysin jail and perform 280 hours of community service. The court also ordered Hubbard to pay various fines and fees, including $23,500 in restitution. Hubbard timely appealed. The evidence introducedat trial showed the following facts: Hubbard wasthe superintendent of the District from July 1, 2003, through June 30, 2006. Atthat time, Karen Christiansen was employed by the District as the director of planning and ' All subsequentstatutory references are to the Penal Code. facilities, under a contract providing for a base salary of $113,000 per year and a car allowanceof $150 per month.” . In a memorandumdated September 29, 2005, Hubbard stated that effective September 1, 2005, Christiansen was to receive a $500 car allowance per month. Hubbardtestified that the reason for the increase (from $150 per month under Christiansen’s contract) was that the travel requirements for Christiansen’s position had dramatically increased after Christiansen took onthe duties of a contractor that had been managing various construction projects for the District but was terminated by the District in the fall of 2005. Hubbard’s September 29 memorandum wasaddressed to Melody Voyles (the payroll benefit specialist) and copied to both Sal Gumina (the assistant superintendent for human resources) and Nora Roque (the human resources coordinator). Guminatestified that the entire human resources department, which he supervised, consisted of himself, Roque, and Claudia Grover, a secretary. In a memorandum dated February 6, 2006, Hubbard stated that Christiansen was to receive a $20,000 stipend. Christiansen’s contract did not provide for such stipend. Hubbard testified that the stipend, like the increased car allowance, was meant to compensate Christiansen for the increase in her workload when she took on the duties of the contractor that had been terminated. Hubbard’s February 6 memorandum was addressed to Roque and copied to Voyles. | Attrial it was undisputed that both the increased car allowance andthe stipend required approval by the District’s board of education—Hubbard did not havethe legal authority to order them unilaterally. The board held regular meetings twice each month. The board discussed personnel matters, including changesin pay, in closed session, but anything requiring board approval hadto be put to a vote of the board in open session. In order for a change in pay to come before the. board for an official vote, it had to be , In a previous appeal, we reversed Christiansen’s convictions on four counts of conflict of interest in violation of Government Code section 1090, and wedirected the superior court to dismiss all charges against her. (People v. Christiansen (2013) 216 Cal.App.4th 1181, 1183.) At all times relevant to the present appeal, Christiansen was an employeeofthe District, but she later became an independentcontractor. 3 listed on either a certificated personnel report (for employees who hold teaching certificates) or aclassified personnel report (for other employees). Those reports were prepared by the humanresources department, which provided them to the superintendent, who would sign them and include them in the packet of materials that the board received before a regular meeting. Voyles, the payroll benefit specialist, was called as a witness by the prosecution. She testified that when an employee’s salary or other recurring payments (such as monthly car allowances) were changed, the change hadto be entered into the computer system by the humanresources department. In contrast, Voyles could process a one-time payment suchasa stipend without humanresourcesfirst making an entry to that effect in the computer. In either case (recurring payments or one-time payments), the District itself did not issue the checks. Rather, the District submitted payment requests that were transmitted to the County of Los Angeles (the County), which would issue the checks to the employees. The County did not “blindly pay things” requested by the District, but rather would “ask for verification,” conduct “audits,” and generally provide some measure of“oversight”to try to ensure that all payments were properly authorized. Voylestestified that when she received the February 6 memorandum (concerning the stipend), she brought it to the attention of her supervisor, Cheryl Plotkin, who was then the assistant superintendent of business for the District. Voyles did not recall “any red flags that went off in [her] mind” concerning the February 6 memorandum; rather, she told Plotkin about the memorandum because that was what Voyles routinely did “for anything that [she] thought was goingto affect budget.” Plotkin, called as a witness by the defense,testified that when Voyles brought the February 6 memorandum — to her attention, she told Voyles “[t]o make sure she had all the documentation.” | Gumina(head ofthe human resources department), called as a witness for the prosecution,testified that upon receipt of the September 29 memorandum or the February 6 memorandum, the human resources department “normally would request backup material . . . to make sure the proper approvals [by the board] were in place,” and it “would not be correct procedure if they did not go back to the superintendent’s office to make sure the necessary backup paperwork was attached.” It is undisputed that Christiansen ended up receiving both the increased car allowance and the $20,000 stipend. But two board members testified that the board never discussed or approved the increased car allowance and never discussed or approvedthe $20,000 stipend. In addition, the District’s assistant superintendentof business services (at the timeoftrial) testified that the District conducteda search ofthe minutes of the board’s meetings “in and aroundthe timeofthe auto allowance”and“in and around the time of the stipend,” and the stipend and increased auto allowance “werenotlisted” on the personnel reports. The prosecution also introduced exhibits consisting of the agendas, minutes, and personnel reports from certain board meetings around the times of Hubbard’s memoranda, but the exhibits did not coverall of the meetings from the relevant period,’ and someofthe personnel reports were missing.° Hubbardtestified that the board briefly discussed the increased car allowance and the $20,000 stipend in closed session,that there were no objections, and that he wrote the - September 29 andFebruary 6 memorandain orderto initiate the process for securing official approval by the board at a subsequent open session—the memoranda were addressed or copied to the humanresources department, which undisputedly was the sole party responsible for creating the necessary personnel reports. Apart from Hubbard’s ; Guminainitially testified on direct examination that because the September 29 memorandum was merely copied to him, he “would not have acted on it,” but he later admitted on cross-examination that “[{t]he procedure should be the same”regardless of whether the memorandum wascopied to him or “sent directly” to him. ‘ For example,the exhibits included the documents from the two meetingsin September 2005, which preceded Hubbard’s September 29 memorandum,as well as the documents from the two meetings in October 2005, which immediately followedthat memorandum. Butthe exhibits did not include the documents from the next two meetings, in November 2005. 5 For example, the exhibits included the agendas and minutes from the meetings of January 10 and 23, 2006, whichstate that classified personnel reports and certificated personnel reports were approvedat those meetings, but the exhibits did not include those reports for those meetings. owntestimonythat he raised both the stipend andthe increased car allowance in closed session (where they were approved without objection), there is no evidence that Hubbard did anything to secure those payments to Christiansen beyond writing those two | memoranda, In addition, Hubbard subpoenaedthe District to produce copies of his email exchanges with board members around the time of the memoranda, which he believed would show that he had indeed discussed both the stipend and the increased car allowance with members of the board. The board moved to quash the subpoena on the ground that compliance would be too burdensome and expensive. The superior court granted the motion, concluding that Hubbard hadnot carried his burden of showing goodcause for enforcing the subpoena. DISCUSSION Undersection 424, subdivision (a), “[e]ach officer of this state, or of any county, city, town,ordistrict of this state, and every other person charged with thereceipt, safekeeping,transfer, or disbursement of public moneys” who “[w]ithout authority of law, appropriates the same, or any portion thereof, to his or her ownuse, or to the use of another,” “[i]s punishable by imprisonmentin thestate prison for two, three, or four years, and is disqualified from holding any office in this state.” Hubbard arguesthat he is not a person “charged with the receipt, safekeeping, transfer, or disbursement of public moneys” within the meaning ofsection 424, so he cannot have violated it. We agree and accordingly reverse his convictions and direct the superior court to dismiss the charges against him. People v. Aldana (2012) 206 Cal.App.4th 1247 (Aldana)is controlling. In Aldana, the defendants were the administrator of a public hospital and a physician whom the administrator had hired to perform various administrative functions. (Id. at pp. 1250-1251.) The physician was paid by the hour for his administrative work. The government program that provided the physician’s compensation “required employeesto report their actual hours worked during each pay period, and required supervisors to certify the hours the employees worked.” (/d. at p. 1251.) The physician signed blank timesheets and provided them to the administrator, whofilled in the number of hours worked each day and “signed them to indicate her approval.” (/bid.) Both the physician and the administrator acknowledged, however,that “the timesheets did not accurately reflect the actual hours [the physician] worked on any particular day.” (/bid.) Indeed, the administrator “did not keep track of the actual hours [the physician] worked,” but rather “estimated and averaged the numberofhours she recorded on [the physician’ s] timesheets.” (/bid.) The physician was convicted of keeping a false account under subdivision (a)(3) ofsection 424, but the Court of Appeal reversed. (Aldana, supra, 206 Cal.App.4th at pp. 1252-1253.) The court reasoned that because the physician “was notable to authorize his own pay,” he was not a person ““‘charged with thereceipt, safekeeping, transfer, or disbursement of public moneys’”within the meaning of section 424. (/d. at pp. 1253-1254.) Rather, the administrator “was the person entitled to authorize” the physician’s pay, and the paymentsto the physician “would not have been processed without [the administrator’s] signature onhis timesheets.” (Ud. at p. 1254.) More broadly, the court observed that no case “‘has heldthat being only thefirst step in a processthat results in the expenditure ofpublic fundsis sufficient to establish criminal liability under section 424 absent approval authority... . [I]t is the ability to control the public moneysthat is key.” (Jbid.) Aldana applies straightforwardly to the case before us. It is undisputed that Hubbard “wasnot able to authorize” the stipend and increased car allowance for Christiansen. (Aldana, supra, 206 Cal.App.4th at p. 1254.) Rather, only the District’s board was “entitled to authorize” those payments. (/bid.) By sending memorandato payroll and the human resources department (which undisputedly wasthe sole party responsible for creating the necessary documents for securing board approval), Hubbard was merely “the first step in a process that results in the expenditure of public funds,” butthatis not “sufficient to establish criminalliability under section 424 absent approval authority,” which Hubbard undisputedly did not have. (/bid.) “[I]t is the ability to control the public moneysthat is key” (ibid.), and Hubbard undisputedly did not havethat ability. He therefore cannot be criminally liable under section 424. Respondentpresents two arguments against that reasoning, but we conclude that both lack merit. First, respondent argues that because Hubbard “wasan officer” of the District, “on that basis alone”he “fell within the class ofpersons subject to prosecution undersection 424.” Thus, according to respondent, because Hubbard wasan officer of the District, he can be criminally liable under section 424 even if he is not a person “charged with the receipt, safekeeping,transfer, or disbursementofpublic moneys” » within the meaning ofthat statute. We disagree for two reasons. First, we note that no case has adopted respondent’s construction of the statute—nocase has held that a defendant may be criminally liable undersection 424 if the defendant was a public officer but was not “charged with the receipt, safekeeping, transfer, or disbursement of public moneys”within the meaning of the statute. Second, the Supreme Court long ago explained that section 424 “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 ....” (People v. Dillon (1926) 199 Cal. 1, 5, italics added (Dillon).) The Court traced the origin of the statute to a provision of the California Constitution concerning the misuse ofpublic funds “‘by any | officer having the possession or control thereof” and observedthatthe statutory language addresses “the single subject of the duties of an officer chargedwith the receipt, safekeeping, transfer, and disbursementofpublic moneys.” (Ibid., italics added.) Similarly, the Court stated that “the subject matter and the language of section 424 clearly indicate that the legislative mind was intently concerned with the single, specific subject of the safekeeping and protection ofpublic moneysandthe duties of public officers in charge ofthe same.” (Id. at p. 6, italics added.) “To againstate the situation more succinctly, section 424 hasto do solely with the receipt, safekeeping, transfer, and _ disbursement ofpublic moneysby official custodians.” (/d. at p. 10.) Dillon was decided nearly 100 years ago, but the relevant provisions of section 424 have remained unchanged. No intervening case law casts any doubt on Dillon’s continuing validity. We are consequently bound by the Court’s construction of section 424. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because section 424 concerns only the misuse ofpublic funds by the official custodians ofthose funds, we must reject respondent’s first argument.° Respondent’s second argumentis that Hubbard was “charged with the receipt, safekeeping, transfer, or disbursement of public moneys” within the meaning of section 424 because he had “some degree of control over the disbursement of [D]istrict funds.” (Italics omitted.) Respondent’s reference to “some degree of control” comes from People v. Groat (1993) 19 Cal.App.4th 1228, 1232 (Groat), which stated that section 424 “requires only that the defendant have some degree of control over public funds.” Weconcludethat respondent’s argument lacks merit. A/dana helpfully summarized Groat as follows: “In Groat, the defendant prepared and signed her own timecards, and no other signature on the timecards was required for the defendantto be paid. (Groat, supra, 19 Cal.App.4th at p. 1230.) The defendant’s timecardsreflected she had been at work or been sick when,in fact, she was teaching at a local college. (Id. at pp. 1230-1231.) The court concluded theability of a public employee to authorize his or her own pay charges that employee with the disbursement ofpublic moneys, and therefore subjects him orherto liability under section 424. (Groat, supra, at pp. 1233-1234.)” (Aldana, supra, 206 Cal.App.4th at pp. 1253-1254.) Thus, insofar as Groat’s broad reference to “some degree of control over public funds” (Groat, supra, 6 Wealso note that the allegations of the operative consolidated information and indictment mirror the language of the statute in a manner that conformsto our interpretation of section 424. The charging document alleges that Hubbard was“a person described in Penal Code section 424 charged with the receipt, safekeeping, transfer, and distribution ofpublic moneys” and that he misappropriated “the same”(i.e., the public moneys ofwhich he was custodian). The charging documentdoesnotallege that Hubbard was an officer. Rather, it predicates his criminalliabilityon his status as a custodian of public funds, which he allegedly misappropriated. 19 Cal.App.4th at p. 1232) suggests that a defendant who lacks approval authority can nonetheless possess the requisite degree of control,it is dicta, becausethe defendantin Groat had approval authority. Again, as stated in Aldana,“[n]o case, including Groat, has held that being only the first step in a process that results in the expenditure of public fundsis sufficient to establish criminal liability under section 424 absent approval authority. As the Groat court explained,it is the ability to control the public moneys that is key.” (Aldana, supra, 206 Cal.App.4th at p. 1254.) For the reasons we havealready given, that key is missing here. It is undisputed that Hubbard wasnot able to authorize the stipend and increased car allowance for Christiansen. That approval authority rested solely with the District’s board. Hubbard therefore cannot be criminally liable for those payments under section 424. Our resolution ofthisissue makes it unnecessary for us to address the remaining arguments raised by the parties. | DISPOSITION Hubbard’s convictions are reversed, all penalties imposed on him, including | . restitution, are vacated, and the superior court is directed to enter an order dismissingall charges against him. NOT TO BE PUBLISHED. ROTHSCHILD,Acting P. J. We concur: CHANEY,J. MILLER,J." Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10 DECLARATION OF SERVICE Case Name: People v. Jeffrey Hubbard Case No.: § Second Appellate District Case No.: B239519 I declare: Iam employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member’s direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordancewith that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that samedayin the ordinary course of . business. On February 10, 2014,I served the attached PETITION FOR REVIEW by placing a true copy thereof enclosedin a sealed envelopein the internal mail system ofthe Office ofthe Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Hillel Chodos The Honorable Attorney at Law Stephen A. Marcus, Judge 1559 S. Sepulveda Blvd. Los Angeles County Superior Court Los Angeles, CA 90025 Clara Shortridge Foltz Attorney for Jeffrey Hubbard Criminal Justice Center ~ (Two Copies) 210 West Temple Street, Department 132 Los Angeles, CA 90012-3210 (One Copy) Max Huntsman Deputy District Attorney Los Angeles County District Attorney's Office 18000 Criminal Justice Center 210 West TempleStreet, 18th Floor Los Angeles, CA 90012 (One Copy) On February 10, 2014, I caused the original and 8 copies of the PETITION FOR REVIEW in this case to be delivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102-4797 by On Trac; TRACKING NUMBERB10270436268. On February 10, 2014,I electronically served the attached PETITION FOR REVIEW with the Clerk of the Court using the Online Form providedby the California Court of Appeal, Second Appellate District. I declare under penalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executed on February 10, 2014, at Los Angeles, California. Z. Salena SE Declarant CT Signature LA2014611652 51453665.doc