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Extracted from Consolidated Report

This investigation was originally published as part of a larger consolidated report containing multiple investigations. View the consolidated PDF for the complete document.

El Dorado County Grand Jury • 2000-2001

Allegation of Cover-up of Criminal Conduct

7 pages
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Findings 45 findings

F1 Page 18
The DA received the case on July 26, 2000.
F2 Page 18
The Attorney representing the victimized organization brought the case directly to the DA.
F3 Page 18
The case was assigned for investigation to a member of the DA’s Investigator’s staff. 19
F4 Page 19
There is no evidence of this case having been reported to the El Dorado County Sheriff’s Department. Response to F4: The respondent agrees with the finding.
F5 Page 19
The standard policy and practice of the current DA is to vigorously prosecute violations of law in El Dorado County.
F6 Page 19
The practice of vigorous prosecution of criminal misconduct generally is in the best interests of the citizens of El Dorado County.
F7 Page 19
In September 2000, the DA, via telephone, discussed the case with a Supervising Attorney within the Office of the State’s Attorney General (“AG”). This procedure resulted in no written record of the content of that discussion at or about the time of occurrence.
F8 Page 19
Subsequently, on March 30, 2001, at the request of the DA, the above Supervising Attorney wrote a letter to the DA memorializing the above discussion. The letter reads in part: “…that we believed the relationship between the potential defendant and your office was sufficiently attenuated that we would not be required to assume the responsibility of prosecuting the case. I also explained that the law does not require the Attorney General to step into cases based on ‘the appearance of impropriety’ but that we would take over the prosecution if you did not feel that your office could treat the defendant fairly.”
F9 Page 19
Because of an existing personal relationship between the DA and the aforementioned ranking member of the Sheriff’s Department, the Chief Assistant District Attorney, was assigned the case for prosecution. The DA did not attend, nor did he personally participate in, any hearing before a judicial officer during proceedings involving this case.
F10 Page 19
The DA’s Office generally uses the guidelines contained within the CDAA publication Uniform Crime Charging Standards as a guide for charging criminal cases, with the exception of narcotics cases. The DA upon election to Office promulgated his own particular guidelines concerning the handling of cases involving narcotics and controlled substances. With the exception noted, the DA has no additional written guidelines for the charging of criminal cases.
F11 Page 19
It is the position of the DA’s Office that, all other things being equal, acts of embezzlement, are more grievous than other acts of theft.
F12 Page 19
Uniform Crime Charging Standards section III-6 (b) “Severity of the crime” reads in part: “A misdemeanor prosecution should not normally be considered if: … (5) The accused has committed a crime against the property of another 20 of a value in excess of $2,000. If the value of the property is less that (sic)$1,000, a misdemeanor prosecution is preferable unless clearly barred by other provisions of these Standards, …If the value of the property falls between $1,000 and $2,000, factors other than the amount of the loss or threatened loss should be determinative;”
F13 Page 20
Uniform Crime Charging Standards III-7 Commentary states in part, “The dollar limitations set forth in Standard D.1.(b) (5), supra, apply only when the accused’s prior record and modus operandi are such that a misdemeanor sentence is otherwise warranted. It is not suggested that the current $400 dividing line between grand and petty theft be charged. For example, if an accused stole $400 worth of merchandise and he had a prior felony conviction that was four years old, the case should be filed as a felony. If he stole $2,000 worth of merchandise, but had no prior criminal record, the case should still be filed as a felony. If an accused stole $1,500 worth of merchandise and he had no prior criminal record, the prosecutor, in determining whether a misdemeanor sentence is warranted, should consider factors like the manner of theft, the likelihood that the accused has been involved in similar thefts, the cooperation of the accused … .”
F14 Page 20
In September 2000, the DA’s Office filed a complaint in the Superior Court of California, County of El Dorado, charging the defendant with Grand Theft, the taking of money “of a value exceeding Four Hundred Dollars ($400), in violation of Section 487(a) of the California Penal Code,” as a misdemeanor.
F15 Page 20
A law which is statutorily defined as a felony, but which may become a misdemeanor under specific conditions, is known as a “wobbler”. Grand Theft is a wobbler and may become a misdemeanor under several circumstances including, but not limited to the following: · Where the crime is charged on its face as a misdemeanor; · Where a court orders the crime, originally charged as a felony, reduced to a misdemeanor; and · Where the sentence imposed as a result of conviction is that of a misdemeanor.
F16 Page 20
The factual basis for this case is seven (7) checks, written by the defendant on the victim’s bank account for the defendant’s own purposes over a time period of twenty five (25) months, in a total amount exceeding $2300.00.
F17 Page 20
It is the practice of DA’s Offices statewide to charge cases of embezzlement as Grand Theft. 21
F18 Page 21
There were fewer than six (6) cases of embezzlement in El Dorado County in calendar year 2000.
F19 Page 21
The DA’s Office charged sixty-one (61) cases of California Penal Code Section 487 (a), Grand Theft, within the calendar year 2000.
F20 Page 21
Six of the sixty-one grand theft cases were charged as misdemeanors. Three had property value losses of $500 or less, one a loss of $1166, and the fifth a loss of $1351. The sixth case, with a loss in excess of $2300, is the subject of this report.
F21 Page 21
Two somewhat similar cases of grand theft charged by the DA’s Office have the following details: · The defendant wrote checks on the victim’s account in the amount of $3500. · The case was charged as a felony and the DA’s Office accepted a felony plea; · The defendant embezzled $2062 from the victim (employer), charged as a felony and the DA’s Office accepted a felony plea.
F22 Page 21
At the time of the filing of the complaint, the DA’s Office sent a 10 day letter to the defendant directing the defendant to submit to “a standard law enforcement identification booking” procedure.
F23 Page 21
A 10-day letter is issued for the purpose of notifying a defendant to surrender, at the defendant’s convenience, for booking prior to a specified date. It is used in those cases, which meet the following criteria: · The defendant has not previously been arrested and booked for an act which is the basis for the complaint charged; · A warrant has not already been issued for the defendant for charges resulting from the complaint; · Where the DA believes the defendant will voluntarily comply with the directed booking.
F24 Page 21
The use of a 10 day letter does not provide the Court, or any Law Enforcement Agency within El Dorado County, with a notice that will trigger a default warning in the event the defendant does not comply with the written direction for booking.
F25 Page 21
At a pre-arraignment conference on some date prior to the defendant’s scheduled arraignment, the defendant’s attorney made a request of the court for a postponement of the required booking.
F26 Page 21
The Chief Assistant District Attorney was present at this conference. 22
F27 Page 22
There is conflicting evidence regarding the position of the DA’s representative on the issue of postponement of booking.
F28 Page 22
There is no reported record of this conference and therefore the position of the DA’s representative on this request is not documented.
F29 Page 22
At the original date set for the defendant’s arraignment, the court record reflects: · A representative of the DA’s Office was not present; · The defendant’s attorney and the victim’s attorney were in attendance; · A representation by the defendant’s attorney was made to the Court, “We’re very close to a civil compromise in this.”; and · The Court granted the defendant’s attorney’s request for a continuance of an arraignment hearing to facilitate the arrangement of a civil compromise agreement or be assigned to a trial court.
F30 Page 22
In October 2000, the case was heard by a visiting judge, and at that time it was settled by civil compromise pursuant to California Penal Code Sections 1377 and 1378.
F31 Page 22
California Penal Code Section 1377 provides: “When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised, as provided in Section 1378, except when it is committed as follows: a. By or upon an officer of justice, while in the execution of the duties of his or her office. b. Riotously. c. With an intent to commit a felony. d. In violation of any court order as described in Section 273.6 or 273.65. e. By or upon any family or household member, or upon any person when the violation involves any person described in Section 6211 of the Family Code or subdivision (b) of section 13700 of this code. f. Upon an elder, in violation of Section 368 of this code or Section 15656 of the Welfare and Institutions Code. g. Upon a child, as described in Section 647.6 or 11165.6.” (Emphasis added)
F32 Page 22
California Penal Code Section 1378 provides: “If the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and 23 entered on the minutes. The order is a bar to another prosecution for the same offense.”
F33 Page 23
California Penal Code Section 1379 states: “No public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this Chapter.”
F34 Page 23
The Chief Assistant District Attorney was present at the hearing at which this case was civilly compromised.
F35 Page 23
There was no court reporter present at the hearing at which the case was settled and the civil compromise approved. Accordingly, there is no transcript of the DA’s position regarding this case disposition.
F36 Page 23
The DA’s standard policy on civil compromise, where civil compromises are legally permissible, is one of the following: · No position on the proposal; or · Opposition to the proposal.
F37 Page 23
In practice the Court generally will not approve a civil compromise in the face of an objection by the DA.
F38 Page 23
The practical effect of the DA taking no position in opposition to a civil compromise is, in the opinion of the Grand Jury, a de facto approval of the proposed civil compromise.
F39 Page 23
Dispositions of criminal cases by civil compromise are unusual events in El Dorado County.
F40 Page 23
Two of the sixty-one aforementioned cases, were disposed by civil compromise. This case was one. The second, with a loss value of approximately $500, was charged as a felony, later reduced to a misdemeanor, and subsequently civilly compromised on April 10, 2001.
F41 Page 23
During the course of the disposition hearing the defendant’s booking status was not brought to the attention of the visiting magistrate.
F42 Page 23
The defendant in the case, which is the subject of this complaint, never submitted to the required booking as directed in the 10-day letter.
F43 Page 23
The case having been disposed by civil compromise, the criminal justice system no longer has authority to compel the defendant to submit to a “standard law enforcement identification booking.” 24
F44 Page 24
The Grand Jury found no evidence that El Dorado County Sheriff Hal Barker attempted to cover-up the defendant’s criminal misconduct, nor did he at any time attempt to influence, or interfere with the investigation of this case.
F45 Page 24
The procedures followed by the District Attorney’s Office during the investigation, filing, proceedings, and disposition of this case were not legally impermissible.

Recommendations 2