State v. Superior Ct. of Sacramento Cnty.
State v. Superior Ct. of Sacramento Cnty.
2004 WL 1468698 (Cal. Ct. App. 2004)
June 29, 2004
Blease, Coleman A., Justice
Summary
Electronically stored information was presented at the preliminary hearing, including Weekley's declaration in response to the state's subpoena, to which he attached the Community Connections billing statement to CRAF and the letter alleged to have been drafted by another facilitator. This evidence was important to the court's decision as it provided evidence that Weekley was aware of the audit when he created the documents.
Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
The PEOPLE, Petitioner,
v.
SUPERIOR COURT of Sacramento County, Respondent;
Ronald Leo Weekley, Real Party in Interest
v.
SUPERIOR COURT of Sacramento County, Respondent;
Ronald Leo Weekley, Real Party in Interest
No. C045111
Court of Appeal, Third District, California
June 29, 2004
(Super.Ct.No. 02F02872)
Counsel
Matthew L. Cate, Office of the State Attorney General, Sacramento, CA, for Petitioner.Tami Buscho, Sacramento, CA, for Real party in interest.
Panel members:
Blease, Coleman A.,
Scotland, Arthur G.,
Davis, Rodney
Blease, Coleman A., Justice
Opinion
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
*1 Following a preliminary examination, real party in interest, Ronald Weekley, was held to answer on eight counts: (1) violation of Corporations Code section 6811 (fraudulent distribution by a corporate director); (2) grand theft of $18,000; (3) perjury; (4) offering false evidence pursuant to a federal subpoena; (5) preparing false documents with the intent to produce them at an investigation; (6) forgery; (7) grand theft of a computer; and (8) receiving stolen property.
The superior court granted Weekley's motion to set aside count 3 charging perjury (Pen.Code, § 118)[1] and count 4 charging the offering of false evidence (Pen.Code, § 132), and granted Weekley's motion to set aside a portion of count 5 (preparing false documentary evidence) that referred to certain documents.
The People seek a writ of mandate directing respondent superior court to vacate portions of its order granting Weekley's motion to set aside the information. We issued an alternative writ of mandate and a stay of the proceedings.
We shall issue a peremptory writ directing the trial court to set aside its order striking certain letters from count 5. However, we do not disturb the ruling of the trial court which set aside count 4 because the federal government alone has the authority to prosecute a defendant for submitting false documents in response to a federal subpoena.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the investigation surrounding former Insurance Commissioner Charles Quackenbush and several nonprofit public benefit corporations created by the Department of Insurance. California Research and Assistance Fund (CRAF) was incorporated in April 1999 following the Northridge earthquake as a public benefit, nonprofit corporation for the purpose of helping communities that were underserved by the insurance industry. CRAF was funded with settlement moneys paid by insurance companies in connection with the Northridge earthquake, and was to be operated “exclusively for the promotion of social welfare.”
CRAF initially had three directors who also served as officers, Kim Brockman, Eric Givens, and Weekley. Brockman was the president, Givens the secretary, and Weekley the treasurer. Givens and Weekley were good friends, and Weekley asked Givens to serve on CRAF's board with him.
In December 1999, Weekley phoned Givens and asked him to sign a contract between Weekley's company, Community Connections, and CRAF. Weekley said Community Connections would be facilitating meetings between insurance company executives and representatives from underserved communities in order to develop a way to better serve those communities. Givens got the impression Community Connections was an ongoing consulting business.
Givens received a fax containing the $18,000 Community Connections contract within a couple of days. The agreement contained Weekley's signature, and was backdated to September 30, 1999. The fax was sent by George Grays from the Department of Insurance. On December 10, 1999, Givens signed the contract and faxed it back to the Department of Insurance.
*2 On the same day Givens signed the agreement, Weekley wrote an $18,000 check on CRAF's account to Community Connections. Weekley did not inform Brockman of the agreement, and did not obtain board approval for the disbursement of funds to his company.
In August 2000 the federal government issued a subpoena to Weekley to produce documents. Weekley produced documents pursuant to the subpoena through his counsel. One of the documents produced was a statement from Community Connections to CRAF that purported to show the work Community Connections had performed pursuant to its $18,000 contract. The statement showed two “All Day Flat Fee[s]” charged at the rate of $4,000 each for facilitating meetings on December 2, 1999, and March 17, 2000. However, the investigation revealed that these meetings lasted only three hours each.
The statement also indicated Community Connections had transcribed a two-day insurance summit and charged 23 hours and $175 per hour. However, Weekley attended only one afternoon of the summit and never produced a transcription.
The statement also showed a charge for drafting two one-page letters at a charge of $1,050. Although the letters referred to a future meeting to be held on December 2, 1999, forensic investigation of Weekley's computer indicated the letters were not drafted until May 16, 2000, at 12:13 p.m. This was one hour after Weekley created the statement charging for the letters. There was also evidence one of the letters was not written by Weekley or Community Connections, but by another consultant.
On February 14, 2000, the California Attorney General's Charitable Trust Unit notified CRAF through its agent for service of process that it was conducting an audit of CRAF's finances. CRAF's lawyers contacted Givens on March 8, 2000, and informed him of the Attorney General's audit.
Weekley created five antedated letters on his computer. The first letter was dated September 1, 1999, and was addressed to George Grays. It purported to confirm an earlier conversation in which the two agreed Weekley would not maintain the checks for CRAF and would not be responsible for making any funding or financial decisions for CRAF. Forensics on Weekley's computer showed this letter was actually created on March 9, 2000.
Two of the letters purported to be in response to billing communications and advised the recipient that all funds were disbursed by George Grays. The letters bore a date of September 10, 1999, and November 17, 1999. Forensics showed the letters were actually created on March 9, 2000.
One letter purported to be in response to concerns of the Senate Insurance Committee regarding television advertising featuring Insurance Commissioner Chuck Quackenbush. The letter stated all disbursements of funds from CRAF were determined by George Grays. The letter bore a date of November 15, 1999, but was actually created on May 7, 2000.
*3 The final letter was addressed to George Grays, the Deputy Commissioner of the Department of Insurance, and was Weekley's letter of resignation as treasurer of CRAF. The letter stated that Grays “always maintained possession of all checks signed and unsigned[.]” The letter was dated March 1, 2000, but was actually created on March 9, 2000.
Weekley also created the earlier referenced billing statement and a document entitled “California Insurance Inclusion Plan” that was dated December 1998, but created on May 17, 2000.
Following the preliminary hearing, Weekley was held to answer on all eight counts, and the complaint was deemed an information.
Weekley brought a motion to dismiss counts 3, 4, and 5. The trial court set aside counts 3 and 4. The court struck the reference in count 5 to all the documents that were created on March 9 because the court found there was no evidence in the preliminary hearing transcript that Weekley was aware of the state audit until March 16, 2000.
This petition followed. We issued an alternative writ of mandate.
DISCUSSION
I
Offering False Evidence
Count 4 charged Weekley with offering false evidence in violation of Penal Code section 132 on evidence he offered false documents in response to a federal grand jury subpoena. The trial court found that federal law preempts state law where the charge is falsifying documents offered pursuant to a federal subpoena for a federal grand jury. The People argue the doctrine of preemption should not apply here because Weekley has committed an act prohibited by both state and federal law.
Penal Code section 132 provides: “Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or antedated, is guilty of a felony.”
The Supreme Court considered an analogous situation in People v.. Kelly (1869) 38 Cal. 145.[2] The defendant was convicted in state court of perjury for making a false oath before the Register of the United States Land Office in his application to make proof of settlement and cultivation of a tract of land. (Id. at p. 148.)
The federal statute making the defendant's conduct a crime stated in pertinent part:
“ ‘[I]n all cases where any oath, affirmation or affidavit shall be made, or taken before any Register or Receiver ... of any local Land Office in the United States ... and such oaths, affirmations or affidavits are made, used or filed in any of said local Land Offices ... and any person or persons shall, taking such oath, affirmation or affidavit, knowingly, wilfully or corruptly swear or affirm falsely, the same shall be deemed and taken to be perjury, and the person or persons guilty thereof shall, upon conviction, be liable to the punishment prescribed for that offense by the laws of the United States.’ “ (Id. at p. 149.)
*4 The California statute under which the defendant was indicted read in pertinent part:
“ ‘Every person having taken a lawful oath or made affirmation in any judicial proceeding, or in any other matter where by law an oath or affirmation is required, who shall swear or affirm wilfully, corruptly and falsely in a matter material to the issue or point in question ... shall be deemed guilty of perjury ... and upon conviction thereof shall be punished by imprisonment in the State Prison for any term not less than one nor more than fourteen years.” (Ibid.)
The court held the defendant's conduct was clearly an offense against the federal law, but it was unclear whether the “ ‘judicial proceeding’ “ or “ ‘other matter where, by law, an oath or affirmation is required,’ “ in the California statute referred only to judicial proceedings and oaths required by California. (Id. at p. 150.) The court stated that “State tribunals have no power to punish crimes against the laws of the United States, as such [,] ” although the state could punish as an offense against the state any act that was an offense against the laws of both the state and the federal government. (Ibid.)
In determining that the perjury conviction was not cognizable in the state court, the court made the following distinction:
“ ‘There is a distinction which we think is conclusive, whatever may be the true principle applicable to them. In those cases the acts done and charged as violations of the laws of both Governments, are not done in the course of the administration of the laws of either Government; but the matters from which the charge now before us arises are alleged to have occurred under and in the course of the execution of the laws of the United States. Those laws required certain things to be done. Congress had the right to prescribe how they should be done, to regulate the duties of all persons who acted under the law, and to prescribe penalties for the violation of such duties. In such case, if acts are done which, if transacted under the laws of this State, would have constituted offenses under the provisions of our Criminal Code, yet, being done in pursuance of the laws of another Government (having the sole power to regulate the whole proceeding), authorizing the act to be done, prescribing the mode, imposing the duty, and affixing the penalty for the violation of it, the acts cannot be regarded as having been done under the sanction of the laws of this State, so as to subject the parties to punishment under those laws.’ “ (Id. at pp. 150-151, quoting State v. Pike (1844) 15 N.H. 83 at pp. 90-91.)
In sum, the court resolved the ambiguity in the state statute by holding that the state had no authority to enforce the federal criminal law by extending the words “judicial proceeding” to encompass the federal proceeding involving the United States Land Office.
In this case, as in Kelly, it is facially unclear whether the language “trial, proceeding, inquiry, or investigation whatever” in Penal Code section 132 refers only to state or local proceedings or whether it also applies to federal proceedings. The ambiguity is resolved by limiting section 132 to its manifest purpose to protect the integrity of state and not federal proceedings. That avoids a construction in which the federal criminal law is simply enforced by the state law.
*5 Any documents Weekley supplied the federal proceeding pursuant to a federal grand jury subpoena were produced pursuant to the laws of the United States which was the sole source of authority for violation of the federal law. The integrity of the federal proceeding is protected by the federal perjury law.
This is not a case in which a violation of the federal criminal law contravenes a policy of the state law and therefore has been incorporated in and made an element of the state law. (See People v. Tilekooh, supra.) Here, the actions charged in the information were taken by Weekley solely in response to a federal subpoena any violation of which is not punishable by state law.
The trial court correctly ruled that count 4 as charged could not be punished under state law. However, the court prematurely stated that count 4 could not be amended to allege false documents were submitted pursuant to a state subpoena. The People have not made a motion to amend the information. An information may be amended with leave of court at any time prior to verdict or judgment provided the amendment charges an offense attempted to be charged in the original pleading and supported by the evidence at the preliminary examination. (Pen.Code, § 1009.)
The trial court stated there was no evidence at the preliminary hearing that false documents were submitted pursuant to a state subpoena. The People point out this is incorrect and argue they did not have an opportunity to present the evidence from the preliminary hearing supporting such an amendment,[3] since they never moved to amend the information. We agree the ruling was premature.[4]
II
Creating False Documents in Violation of Penal Code Section 134
Count 5 charged Weekley with violating Penal Code section 134. That section makes it a felony to prepare “any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law....”
The trial court found CRAF's attorneys contacted Givens on March 8 and 10, 2000, to inform him of the Attorney General's audit. It further found Weekley participated in a telephone meeting in which the audit was discussed on March 16, 2000. The trial court found there was no evidence Weekley knew about the investigation until the telephone meeting on March 16, 2000. The trial court struck from count 5 all references to Weekley's documents created on March 9, 2000.
The People argue the trial court ignored the reasonable inference that Weekley knew of the audit by March 9, 2000, based upon the evidence his fellow director was informed of the audit on March 8, 2000, and CRAF was given notice of the audit on February 14, 2000. The People argue the only other inference to be drawn from the evidence is that Weekley suddenly began creating backdated letters passing off responsibility for CRAF's finances for no reason at all. We agree with the People.
*6 When reviewing the superior court's order granting a Penal Code section 995 motion to set aside, we disregard the ruling of the superior court and review the determination of the magistrate. (People v. Campbell (2000) 82 Cal.App.4th 71, 75-76; People v.. Alonzo (1993) 13 Cal.App.4th 535, 538.) The issue on review is whether the evidence presented at the preliminary hearing was sufficient to “ ‘lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.... An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ “ (Guevara v. Superior Court (People) (1998) 62 Cal.App.4th 864, 869, quoting Taylor v. Superior Court (1970) 3 Cal.3d 578, 582.) The information should be set aside only when there is a total absence of evidence to support an element of the charge. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842.) Every legitimate inference that can be drawn must be drawn in favor of the information. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)
We conclude the evidence that CRAF had been notified of the audit, Givens was aware of the audit, and Weekley began creating backdated documents shortly after Givens was notified, is sufficient evidence from which a reasonable person could infer Weekley was aware of the audit when he created the documents.
DISPOSITION
Let a peremptory writ of mandate issue compelling respondent superior court to vacate that part of its order striking the references in count 5 to the letters Weekley created on March 9, 2000, and to enter a new and different order consistent with this opinion. Having served its purpose, the alternative writ is discharged, and the stay issued by this court is vacated upon the finality of this opinion. The parties shall bear their own costs in this proceeding. (Cal. Rules of Court, rule 56.4(a).)
We concur: SCOTLAND, P.J., and DAVIS, J.
Footnotes
Although the petition originally argued respondent erred in setting aside the perjury count, we granted the People's request to abandon this argument.
See also our recent decision in People v. Tilekooh (2004) 113 Cal.App.4th 1433, 1445-1447, which follows Kelly.)
Evidence was presented at the preliminary hearing that the California Attorney General's office conducted an audit of CRAF pursuant to which subpoenas to produce documents were served on Weekley. Additionally, the People introduced Weekley's declaration in response to the state's subpoena, to which he attached the Community Connections billing statement to CRAF and the letter alleged to have been drafted by another facilitator.
We express no opinion whether the evidence introduced in the preliminary hearing is sufficient to permit an amendment of the information.