1. Without authority of law, appropriates the same, or any portion
thereof, to his own use, or to the use of another;
2. Loans the same or any portion thereof; makes any profit out of, or
uses the same for any purpose not authorized by law... Is punishable by
imprisonment in the state prison for two, three, or four years, and is
disqualified from holding any public office in this
In having custody of official county credit cards,
both supervisors met the test of Section 424 of being "charged with" both
"safekeeping" and "disbursement" of public funds as represented by, and
available through, those credit cards, for purposes of official county business.
Thus they both meet the test of being subject to the language of Penal Code
reasonable person would conclude that people who violate Section 424's
subsection 1 ("without authority of law appropriates any portion" of public
funds for his own use) would be subject to one of the listed felony-level
penalties. So would persons violating subsection 2's prohibition against "loans"
of such funds to themselves. As would persons (subsection 2 again) who "use the
same for any purpose not authorized by law." Violation of any one such provision
could merit such felony penalty.
Yet Marin District Attorney Paula Kamena said the Rose
and Kress violations of county policy were not criminal acts. How can she
suggest that "sloppy county policy" or county "authorization" has power to
negate state law?
The D.A. contends that prosecution depends upon
"criminal intent," but California case law makes it clear actual "possession" of
public funds is not needed for embezzlement to occur, and that "intent" is not
required for conviction.
In People v. Knott (15 C2d 628, 104 P2d, 128 ALR
1367) (1940) the court ruled that Section 424 applies to money over which the
defendant may have control, although it may not be in his possession. Public
"money" was not in the "possession" of Rose or Kress, but both had "control"
over some, and both used some for personal purposes, through their credit
In People v. Dillon (199 C1, 248 P.230) (1926)
the court ruled that the Legislature has the power to provide that embezzlement
is committed when a person uses public funds in a manner forbidden by law, even
though he may have no fraudulent intent.
In People v. Battin (77 CA 3d 365, 143 Cal Rptr
731, 95 ALR 3d 248) (1978) the court ruled that a conviction under Penal Code
424, subsection 2, prohibiting use of public funds for purposes not authorized
by law is a felony, and that it "does not require proof of specific intent, and
no instruction on specific intent is required."
In view of Section 424 and the above court rulings,
Marin United Taxpayers Association has serious reservations about the district
attorney's failure to prosecute.
Why did she give a "free pass" to Supervisors
Rose and Kress in a matter Section 424 calls a felony?
Is it "party loyalty"-registered Democrat Kamena
protecting registered Democrats Rose and Kress?
Why is she -in our view- not doing her sworn
duty, duty for which Marin taxpayers pay her salary?
P.S. This is another organization
that is starting to see the light of our wisdom!