Opinion
HAMLIN, Acting P. J. Petitioner Benny E. Webb (petitioner) seeks a writ of prohibition to prevent the Tulare County Superior Court from conducting further criminal proceedings against him in action No. 24994. In that action petitioner is charged with eight counts of misappropriation of public funds in violation of Penal Code section 424, subdivision l.1 Petitioner contends the trial judge erroneously denied his section 995 motion to set aside the information against him.
[876]This court issued an order requiring respondent superior court to show cause why the relief sought by petitioner should not be granted and staying trial pending determination of this petition or further order of this court. Petitioner urges that there was no reasonable or probable cause to commit him on the information in that he is charged in all counts with misappropriation of public money in violation of section 424, subdivision 1, a statute that applies only to officials charged with the receipt, safekeeping, transfer, or disbursement of public moneys, which he is not. Petitioner also asserts that respondent superior court erred in failing to read all the transcripts of the preliminary hearing and the grand jury proceedings as promised so as to be able to consider all the testimony therein before ruling on his motion and in publicizing its ruling before filing it with the clerk of the court. We find petitioner’s contentions unmeritorious and will deny his petition for writ of prohibition.
The Facts
At the time the information was filed against petitioner, he was a supervisor for the Fifth Supervisorial District of Tulare County (County). Morton Avenue in the City of Porterville (City) is within that district. In 1984 the south side of Morton Avenue from York Street to about 300 feet east of Walch Street was unimproved with curbs and gutters, and many of the residents experienced problems with flooding. This area on Morton Avenue is one in which there are both City and County properties, so that some of the property fronting on Morton Avenue was in the City and the remainder was in the County.
In 1984 petitioner approached some of the Morton Avenue property owners to see if they would be willing to give the front several feet of their property in exchange for curbs and gutters being installed on the widened southern boundary of Morton Avenue. In February 1984, landowners Alice Taylor and Jacqueline Griffin agreed and signed contracts to have the improvements installed. The check from the County for her property was given to Taylor by petitioner; a check from the City was given to Griffin. They endorsed the checks in petitioner’s presence and returned them to him as agreed. Petitioner turned the checks over to Manuel Rodriguez, the cement contractor who installed the curbs and gutters for both properties. The checks were in amounts that far exceeded the costs of those improvements to the properties of Taylor and Griffin.
Later in the year, five other property owners agreed with petitioner to give the front several feet of their properties in exchange for the installation of curbs and gutters. Petitioner then went to the City public works department staff and at least one of the members of the city council to see if they [877]would be willing to go along with his plan to have curbs and gutters installed on the remainder of the stretch of Morton Avenue under consideration. Petitioner’s plan was that the City would allocate $23,250 to complete all of the improvements within the Morton Avenue improvement project. Part of the plan was that checks would be drawn on the City’s treasury made payable to the five property owners and that those checks would pay for the curbs and gutters not only in front of the property owned by those named individuals but for curbs and gutters for all of the property within the Morton Avenue improvement project.
The city council approved the acquisition of the property of the five property owners and authorized the disbursement of the warrants, ostensibly in payment for the fee interest in property being conveyed by the private property owners to the City. The checks were then delivered to petitioner, who delivered them to the individual property owners and instructed them, according to their prior agreement, to endorse the checks and hand them back to him in the same transaction. That is to say, on each occasion, petitioner personally took the check to the property owner, handed the check to the property owner for signature, waited while the check was signed, and immediately took back the check from the property owner. The checks were then taken by petitioner to Rodriguez, who deposited them in his bank account and proceeded to install the curbs and gutters all along the properties within the Morton Avenue improvement project. All the property owners believed the value of their property was the same as the cost of the improvements to their property, and no one intended that any amount payable to him or her be used to improve anybody else’s property.
In another matter (the subject of count VIII of the information), petitioner prevailed upon a friend of his, Peter Ruddock, to purchase from Union Oil Company (Union) a parcel of property located at the northeast corner of Main Street and Vandalia, generally described as 680 South Main Street, Porterville, for $45,000. Immediately thereafter, the parcel purchased was split into two lots pursuant to petitioner’s directions. The lot comprising three-fourths of the original parcel was then purchased for $50,000 by the Tulare County Board of Supervisors (Board) at petitioner’s request. Part of the additional $5,000 went to Ben Ennis, a real estate agent, as a commission he did not claim and which he donated to Senior Gleaners, a senior citizen organization, with the stipulation that it be used to pay the engineering firm that did the necessary work to accomplish the lot split. At petitioner’s direction, Ruddock gave to Porterville Youth Incorporated the second lot into which the original parcel was split.
[8781]. Taylor Property (Count I)
A. Testimony of Alice Taylor
Alice Taylor testified that petitioner approached her regarding the installation of curbs and gutters in front of her house in exchange for a strip of frontage from her property. She signed a contract with Manuel Rodriguez for the work but did not recall reading the contract. She also signed a deed and the county warrant in payment for the strip of her property and gave the check back to petitioner; petitioner did not tell her that funds from her warrant would be used to pay for improvements to other property and she never agreed to such a deal. Alice Taylor’s contract with Rodriguez shows that the cost of the installation of her curbs and gutters was $1,458. The check she signed and returned to petitioner was in the amount of $3,240.
B. Testimony of County Staff
Doug Wilson, the public works director for the County, at petitioner’s request, took an item to the Board to authorize the funding of a construction project at the corner of Rose Lane and Morton Avenue. The Board authorized approximately $6,000 for that work. The purpose of the money was to pay costs involved in the acquisition of rights-of-way and some cleanup on the private road, Rose Lane. Wilson testified that the rights-of-way were to be purchased from Griffin and Taylor, owners of the southeast and southwest corners of Rose Lane and Morton Avenue. Actually, it was the City that paid for the improvements on Griffin’s property.
Wilson testified that the normal procedure after the Board had passed the agenda item would be to have an appraisal done and to negotiate with the property owners for the acquisition. Once the negotiations were complete, County staff would return to the Board for acceptance of the right-of-way deeds and authorization for payment. The County would typically go to bid for the installation of curbs and gutters. Wilson testified that he was not aware of any appraisals being done on the properties on Morton Avenue.
Wilson further testified that Manuel Rodriguez did the curb and gutter work on the Morton Avenue project and that the County did the pave-out work after the curbs and gutters were installed. Rodriguez was to reimburse the County for the pave-out work that was done within the city limits but for which the County paid the entire amount. At the time of the preliminary hearing in 1987, Rodriguez had not yet paid the County for the pave-out work.
[879]Wilson also testified that following the construction on the intersection of Rose Lane and Morton Avenue, petitioner contacted him again regarding completion of the project on the rest of Morton Avenue, but that he (Wilson) was not “necessarily” prepared to recommend that revenue sharing money be used to complete the Morton Avenue improvement project and that there were no road funds budgeted by the County for the project.
Wilson got the Taylor deed from petitioner, but the Board authorization called for a fee interest and Taylor gave only an easement.
2. Remainder of Morton Avenue (Counts II, III, IV, V, VI, AND VII)
A. Testimony of City Officials
Steve Tree, a member of the Porterville City Council and the mayor in 1984, testified that he had a conversation with petitioner regarding curbs and gutters on Morton Avenue. Petitioner told him that property owners were willing to deed the property for the cost of improvements. They discussed the City purchasing the property with the improvements already on it. Tree remembered some discussions regarding, “How are we going to decide which property owner gets paid what?” since “it would be one lump project.” On cross-examination, Tree testified that the payment plan was that the checks given to petitioner would pay for the entire Morton Avenue improvement project, but on redirect he testified that he was not aware that the money would be used for other than the five properties because he did not know how many properties were on the street. He did understand that the checks would be cut for individual property owners and it would all be coming back for the improvements.
Gene Klatt testified that in 1983 and 1984 he was employed by the City as an engineer. In 1984 petitioner contacted him regarding the possibility of the City and the County doing some joint work on the Morton Avenue drainage problem. Klatt testified that the south side of Morton Avenue was largely in the County. When asked why the City would become involved in improvements on the County’s property, he said: “[T]hat portion of the county was essentially a county island, fell within city jurisdiction, or within the city’s sphere of influence. . . .
“Morton is also a designated east-west arterial through the city. ... So that in all likelihood, most of that county area would eventually be annexed into the city. . . .
“So that completion of Morton Avenue would benefit the city because it served primarily city traffic in and around the area, it was a major arterial;
[880]and would benefit the county residents, because they had been asking for the street to be improved.”
In discussing the City’s involvement in the Morton Avenue improvement project, Klatt said:
“I don’t recall how the number came about, but we discussed that if the city were to engage contractors to perform the work, because of bonding requirements, insurance payments, and so forth, our contract prices tend to be higher than a private contract. That if the city would contribute monies to this construction, it was felt that the property owners, acting through an agent, could hire a contractor, secure the work at a lesser cost than the city could.
“And in subsequent discussions with both Mr. Webb and the city manager, it was arrived at that the city would contribute, I believe it was twenty-four thousand five hundred. And an agenda item was prepared [by Klatt] describing that monies and justifying the costs on the basis of the improvements and land value.”
Klatt later testified that the city council, to the best of his knowledge, was aware that a proposal had been put forth by petitioner that for a payment of $23,250, the City’s share, the south side of Morton Avenue would be improved, and the City would have either fee title or use the existing County easement title for that roadway.
Charles Huifaker testified that he was the city manager in 1984. He met with petitioner and his attorney on June 21, 1984, to discuss the curbs and gutters on Morton Street; he discussed with all five of the city council members in 1984 the idea of expending the City’s money for the improvement of property within the County; he was not aware of any plan by which the $23,250 would be used for anything other than to compensate the property owners for their property and improvement as per the agenda item.
Manuel Rodriguez testified that he was a contractor, that he met with petitioner to discuss the Morton Avenue improvements, that petitioner obtained encroachment permits from the City, and that petitioner paid him with the checks endorsed by the landowners and told him whom to pay. Rodriguez indicated that petitioner gave him “a whole bunch [of checks], about ten of them.” He received Taylor’s check for $13,240 in March and the others in August. Rodriguez still owed the County about $4,000 for the pave-out work that was done in 1984 on the Morton Street project.
[881]B. Testimony of Landowners
Chois Webb (count III) testified that petitioner contacted him with the proposal to exchange property for curbs and gutters with the understanding that he would have to pay some extra; petitioner later brought the deeds to Webb, who signed them in his home. Webb further testified that petitioner brought him a check which he signed and gave back to petitioner. When asked why he signed the back of the check, Chois Webb answered, “I signed it because I thought it was five hundred dollars. I signed it because it was for the curbs and gutters. We didn’t want to be contrary to any of the community that we’re neighbors. I wanted to go along with the group on Morton. And we signed it because we were interested also in curbs and gutters.” The check was actually for $5,719.50. Chois Webb testified that he did not look at the amount.
Vivian Webb, the wife of Chois Webb, testified that she signed the deed and that she signed the check under the same circumstances and belief as her husband.
Edythe Keck Green (count II), who is by her own account, “an old lady, almost eighty years old” who does not claim to be “so good at thinking anymore,” was approached by petitioner with the idea of having curbs and gutters installed. Apparently her only concern was with the cedar trees in her front yard. She testified that she signed the check for $3,464 and gave it back to petitioner.
Bess Ball (count IV) testified that petitioner had contacted her, telling her she could get curbs and gutters for $500. She testified that petitioner brought her the check for $4,650, that she signed it and gave it back to him. She understood less of the plan and transaction than some of the others since she believed she had donated her property to the City and could not understand why they were giving her a check that she had to give back to petitioner. She told petitioner it was just like stealing from her.
Jacqueline Grilfin (count VI) testified that petitioner contacted her regarding the installation of curbs and gutters; she signed a contract for the installation of the curbs and gutters; petitioner brought her the check from the City and said, “This will cover it”; she signed the warrant and returned it to him. She did not intend to pay for anybody else’s curbs and gutters and there was no deal for her warrant to cover the rest of the street; she believed the property she gave was a straight tradeoff for the improvements. Griffin’s contract with Rodriguez shows that the cost of the installation of her curbs and gutters was $1,538. The warrant she signed and returned to petitioner was in the amount of $3,999.
[882]Ruth Cook Alley testified that petitioner approached her on several occasions but she persisted in telling him that she did not want curbs and gutters. Finally, after several visits she agreed to go ahead, as petitioner assured her it was not going to cost her any money. She testified that she signed a grant of easement which was later recorded but received no money and paid none.
Vee LeDuc, another owner of property within the Morton Avenue improvement project, testified much the same as Ruth Cook Alley.
Elven Atkinson testified that Manuel Rodriguez first contacted him and then he spoke to petitioner regarding the curbs and gutters. Atkinson indicated that he and petitioner discussed the possibility of a tradeoff, that is, trading the right-of-way for curbs and gutters, but that petitioner told him the County really did not have the money and that if he wanted curbs and gutters he would have to pay for them. He testified that the deed “for the right-of-way” he executed had not been delivered or recorded, but he paid $500 to Rodriguez for the curb and gutter work.
Judith Bowles Treadwell (count V) testified that she is employed by the City in the engineering and building division. Petitioner contacted her to see “if we’d be interested in dedicating, you know, or moving, you know, giving some of our land in exchange for curbs and gutters.”
She testified that she signed a deed of easement in her kitchen in petitioner’s presence and delivered it to him. There was no discussion between her and petitioner regarding payment of any money for her property, but she received a check for $5,417.25 from petitioner and endorsed and returned it to him.
3. Main Street Property (Count VIII)
Ben Ennis, a real estate broker, testified that Peter Ruddock bought the property located at 680 South Main by offer dated August 6, 1985. The purchase price was $45,000, and Ennis received a real estate commission for producing Ruddock as the buyer.
Randall Gibson, the real estate manager for Union Oil, the seller of the property to Ruddock, testified that he had a conversation with petitioner regarding the property located at 680 South Main and told petitioner on August 6, 1985, that Union would be happy to entertain condemnation proceedings or a letter of intent regarding condemnation. At that time, petitioner said he did not think he could do that in a timely fashion. Petitioner drove to Los Angeles the next day (Aug. 7, 1985) to deliver Rud[883]dock’s offer to Union Oil and gave it personally to Gibson. Gibson assumed that petitioner was acting as a County official.
Peter Ruddock testified that he purchased the property located at 680 South Main Street after petitioner contacted him and asked him to buy the property. Ruddock felt he was doing a favor for the County, for “old folks and . . . some kind of a youth organization.” Ruddock testified that he was not interested in making a profit on the deal and that petitioner had suggested the lot split. He also testified that he understood that his escrow costs would come out of the extra $5,000 to be received on the sale to the County.
Vicky Hildreth, the office manager for First American Title in Porter-ville, testified that petitioner opened the escrow on the Ruddock sale to the County and the conveyance to Porterville Youth Incorporated but that petitioner signed no documents. She also testified that petitioner supplied the property descriptions.
Don Monk testified that he is a civil engineer employed by R. L. Schaffer and Associates. In 1985 he performed a survey of the South Main Street property. He discussed the survey with petitioner and drew up legal descriptions for the two parcels into which the South Main Street property was split.
Lloyd Kuhn, the director of building services for the County, testified that petitioner requested him to look at the property located at 680 South Main Street to determine its accessibility for the handicapped. Petitioner further told Kuhn that surveyors were going to break off a portion of the lot. Kuhn testified that petitioner asked that an item be included on the Board’s agenda regarding a notice of intent that the County would purchase the property located at 680 South Main Street for $50,000. Kuhn got the legal description of the property in question from Shirley Valentine, a County property technician.
Clyde Gould, Tulare County District 1 Supervisor, testified that he knew of the lot split before the County purchased the South Main Street property but that he did not know the property had just been purchased for $45,000 and the County was only purchasing three-quarters of it. He testified he still would have voted in favor of 'it if he had known.
John Conway and Lori Mangine, supervisors for districts 2 and 3, respectively, testified they would not have voted in favor of the acquisition if they had been aware of petitioner’s involvement.
Leroy Swiney, the district 4 supervisor, testified that he would not have voted in favor of the acquisition if he had known of petitioner’s involve[884]ment, since he believed that the County got less property than originally thought.
Shirley Valentine, a property technician employed by the County, testified that petitioner told her he had Ruddock buy the property to keep for the County because the County could not get the money quickly enough. Lloyd Kuhn, her supervisor, knew about the lot split and advised her that they could not complete the purchase until the lot was split.
On rebuttal, Lloyd Kuhn testified that he found out the details after the escrow had closed, that he knew the lot split had to be accomplished before escrow could close, but he never knew the price of the property before the split had been $45,000. Shirley Valentine testified that Kuhn had told her the price had been $45,000.
Reba Quiram, the treasurer of the Senior Gleaners, testified that she received a check for $4,351.39 from Ennis Realty and that petitioner delivered the check to her with instructions to pay certain bills, including that of R.L. Schaffer and Associates, the company that did the survey and engineering work for the lot split.
Thomas Logan testified that he was the auditor for the County and that he had a travel claim from petitioner for 372 miles on August 7 for a trip to Los Angeles. Counsel stipulated that petitioner had submitted an expense voucher for lunch on that same day in the amount of $4.80.
Discussion
I.
Standard of Review
An information should not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility an offense has been committed and the accused is guilty of it. (People v. Slaughter (1984) 35 Cal.3d 629, 637 [200 Cal.Rptr. 448, 677 P.2d 854].) Evidence that will justify a commitment need not be sufficient to support a conviction. (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464 [93 Cal.Rptr. 587, 481 P.2d 211].) So long as there is some evidence in support of an information, a reviewing court will not inquire into its sufficiency. “Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.” (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197].)
[885]“The term ‘sufficient cause’ is generally equivalent to ‘reasonable and probable cause,’ that is, such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 P.2d 609].) On appeal, the issue must receive the “independent scrutiny appropriate for review of questions of law.” (People v. Slaughter, supra, 35 Cal.3d at p. 638.) The reviewing court must decide only whether the magistrate who held the defendant to answer could reasonably have reached the conclusion it did. (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.)
II.
Challenge to Applicability of Section 424, Subdivision 1
All the charges against petitioner were based on misappropriation of public money in violation of section 424, subdivision 1, which provides: “Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either: [1f] 1. Without authority of law, appropriates the same, or any portion thereof, to his own use, or to the use of another; . . . [U] . . . [U] Is punishable by imprisonment in the state prison for two, three or four years, and is disqualified from holding any office in this state.”
Prior to 1987, section 426 provided: “The phrase ‘public moneys’ as used in the two preceding sections [§§ 424 and 425], includes all bonds and evidence of indebtedness, and all moneys belonging to the state, or any city, county, town, district, or public agency therein, and all moneys, bonds, and evidences of indebtedness received or held by state, county, district, city, town, or public agency officers in their official capacity.”
We must determine, then, if the evidence adduced at the preliminary hearing shows reasonable and probable cause to believe that petitioner violated section 424, subdivision 1. We begin by noting that any such violation is not a specific intent crime. (People v. Dillon (1926) 199 Cal. 1 [248 P. 230].) Thus section 424; subdivision 1, does not require proof of an intent to steal or misappropriate, but rather the intentional doing of an act that results in the misappropriation. (Dillon, supra, at p. 7.)
As can be seen through a review of the voluminous and convoluted facts, petitioner’s actions and activities were highly irregular and outside the usual procedures employed by public officials. The question, though, is, based upon a review of the evidence presented at the preliminary hearing, [886]whether there was some rational ground for the magistrate to assume not only that some violation of law had occurred but that a violation of section 424, subdivision 1, had occurred and petitioner had committed the violation.
This is obviously not the typical case of a violation of section 424, subdivision 1. That section is more often used in situations where a public employee or official, in the course and scope of his or her employment, receives money and converts the money to his or her own use rather than turning it over to the public entity. (See, for example, People v. Best (1959) 172 Cal.App.2d 692 [342 P.2d 314] [bail money accepted by police officer who never turned money over to city]; People v. Griffin (1959) 170 Cal.App.2d 358 [338 P.2d 949] [deputy municipal court clerk accepted bail money but failed to deliver it to court].) Another typical scenario is where the employee in his or her official capacity, having access to public moneys and having the authority to disburse the public moneys for certain purposes, embezzles the money to his or her own purpose. (See People v. Little (1940) 41 Cal.App.2d 797 [107 P.2d 634] [city employee having access to city funds embezzled them].)
The charges against petitioner which he seeks to set aside do not involve acts that fit either of the typical scenarios. What petitioner did that provides the basis for the charges in counts I through VII was use his position as a member of the Board and the trust and respect that position carries with it to implement a scheme for the improvement of Morton Avenue that he would not have been able to accomplish through the ordinary and, indeed, legal channels. Testimony was adduced that County money was not available for the improvement project and that accounted for petitioner’s scheme to get the money from the City even though the County property was being improved to the benefit of both the City and the County.
In People v. Battin (1978) 77 Cal.App.3d 635, 649 [143 Cal.Rptr. 731, 95 A.L.R.3d 248], cert. den. Battin v. California (1978) 439 U.S. 862 [58 L.Ed.2d 171, 99 S.Ct. 183], the defendant argued that he did not “disburse” public moneys within the meaning of section 424, subdivision 2, because he did not have actual custody of the moneys paid to his staff. That court cited with approval the decision in People v. Qui Mei Lee (1975) 48 Cal.App.3d 516 [122 Cal.Rptr. 43] that the application of section 424 is not limited to officers who have actual custody of public funds. The court noted that under established case law the defendant’s conviction of misuse of public funds could be upheld because the records used as the basis for improper disbursement of county funds by third parties were prepared by or under the direction of the defendant (a county supervisor) with knowledge of the intended purpose of those records.
[887]Thus, for a public official, and particularly a county supervisor, to violate section 424, it is not necessary that he or she have actual custody of the public moneys. The fact that petitioner was not directly, in his job description or the common responsibilities of his position, charged with receipt, safekeeping, transfer or disbursement of public funds does not necessarily preclude a prosecution under section 424. It is sufficient if the public official controls public funds so as to cause their expenditure for nonpublic purposes. (People v. Qui Mei Lee, supra, 48 Cal.App.3d at p. 523.)
III.
Counts II Through VII Based on Misappropriation of City Funds
As petitioner points out, counts II through VII of the information allege misappropriation of warrants issued by the City to various individual owners of property within the confines of the Morton Avenue improvement project. Since these are City funds and petitioner is not a City official, petitioner contends he cannot be charged with misappropriating them. Additionally, petitioner urges that after each of the warrants for payment of City funds was delivered to the Morton Avenue property-owner/payee, it no longer represented public moneys. All of these arguments are based on the language of section 424, subdivision 1, and related sections without citation of authority.
In People v. Wall (1980) 114 Cal.App.3d 15 [170 Cal.Rptr. 522], the defendant parking meter collector contended the evidence was not sufficient to support his conviction of unauthorized appropriation to his own use of public moneys. (§ 424, subd. 1.) The court held that “section 424, subdivision 1 and section 425 were intended to punish those charged with the receipt and transfer of moneys belonging to the state or a subdivision thereof and who misappropriate such moneys when there is a nexus between the moneys they are charged with and the moneys misappropriated.” (Wall, supra, at p. 22.) It then concluded that the required nexus existed in that case even though the defendant was not acting in his official capacity when he emptied the parking meter. The defendant was charged with the receipt and transfer of the parking meter moneys that he misappropriated, “using the very instrumentalities of his occupation to gain possession thereof.” (Ibid.)
In this case petitioner received the City warrants in his capacity as a county supervisor, he delivered the warrants to the various property owners pursuant to arrangements with City officials, and the property owners endorsed the warrants and returned them to petitioner in his capacity as a [888]county supervisor pursuant to arrangements he made with them in that capacity. Petitioner then exercised his control over those endorsed warrants to pay for the Morton Avenue improvements in their entirety without regard to whether a particular property owner was paying more than his or her proportionate share without his or her knowledge or consent and without regard to whether County funds were being used for County purposes or City funds were being used for City purposes.
Under these circumstances, petitioner’s argument that he cannot be guilty of misappropriation of the City’s public moneys because he was not the person charged with the receipt, safekeeping, transfer or disbursement of the City’s public moneys is not persuasive. The fact is petitioner gained control of the City’s public moneys in his capacity as a supervisor and exercised that control in the same capacity. Here, the preliminary hearing transcript deinonstrates that petitioner was the instigator and the dominant figure in the plan whereby moneys belonging to the City were misappropriated. Endorsement of the warrants by the individual property owners and immediate ^delivery to petitioner did not affect the character of the warrants as public moneys. No one involved in authorizing the issuance of the warrants or their delivery had any intention that the warrants were to compensate the individual landowners for their property. There is no testimony in the record that any of the property owners considered the amount payable to him or her pursuant to the warrant as his or her money. Each owner understood he or she was exchanging a strip of his or her property for the Morton Street improvements to the property exchanged. The owners served only as conduits to make City funds available to the contractor in payment for installing the improvements.
We conclude that the evidence introduced at the preliminary hearing as to counts II through VII established reasonable and probable cause to believe the funds for the Morton Avenue improvements were received by petitioner in his official capacity as county supervisor pursuant to a plan he worked out in his official capacity to misappropriate those public funds. Thus there exists the required nexus between the moneys he received in his official capacity and the moneys misappropriated. (People v. Wall, supra, 114 Cal.App.3d at p.22.)
IV.
Count VIII—The County's Purchase of 680 Main Street, Porterville
Petitioner urges that he had no duty to reveal to the other members of the Board the unusual circumstances underlying its purchase of one of the parcels into which the unimproved lot referred to as 680 South Main [889]Street in Porterville had been split. Additionally, he contends he did not conceal from the Board any information about the property or the facts underlying its acquisition.
The facts before the magistrate at the preliminary hearing reveal that petitioner prevailed upon a friend of his, Peter Ruddock, to purchase the South Main Street property from Union for $45,000, the listed price. Some six days later petitioner prevailed upon the Board to purchase from Ruddock for $50,000 one of the two parcels into which the South Main Street property had been split. At least a majority of the Board believed it was purchasing the entire parcel of property commonly known as 680 South Main Street, Porterville. In fact, the property purchased represented three-quarters of that property. Ruddock gave the remaining one-quarter of the property to Porterville Youth Incorporated at petitioner’s direction.
Also at petitioner’s direction, Ruddock used the $5,000 difference between his cost of the entire parcel and the price he received from the County for three-quarters of the parcel to pay escrow costs and to pay Ennis Realty a commission of $4,351.91 on the sale to the County. However, Ennis Realty was not involved in the sale to the County and did not request a commission on that sale. Ennis Realty donated to Senior Gleaners the amount it received from the proceeds of the sale to the County. Petitioner delivered Ennis Realty’s check for $4,351.91 with instructions that Senior Gleaners use the proceeds to pay R. L. Schaffer and Associates for the engineering and survey work for the lot split. That lot split was directed by petitioner, and it in no way benefited the County.
We look to petitioner’s plan for causing the County to acquire a portion of the South Main Street property to determine whether there is any rational ground for assuming petitioner exercised his control over County funds for any purpose not authorized by law. The evidence offered at the preliminary hearing demonstrated that petitioner knew that the property he asked the Board to purchase from Ruddock could be purchased for $45,000 plus the expenses of sale. When petitioner caused Ruddock to ask $50,000 for it to produce an additional $4,351.91 that petitioner could control as a commission to Ennis Realty that was neither earned, requested nor expected by Ennis Realty, the extra $4,351.91 of County funds were subject to petitioner’s control and, in his capacity as supervisor, he used those funds for a purpose not authorized by law.
We conclude that the evidence presented at the preliminary hearing in support of count VIII provided reasonable and probable cause for the magistrate to believe petitioner had controlled County funds to his personal benefit and to the benefit of others in violation of section 424, subdivision 1.
[890]V.
Alleged Failure of Trial Court to Consider All the Testimony Included in the Transcripts
Petitioner asserts that the trial judge said at the conclusion of argument on petitioner’s section 995 motion that over the weekend he would read the entire preliminary hearing transcript (2,021 pages in 11 volumes) and all the transcripts of the grand jury proceedings on indictment (6 volumes, 867 pages). Then the trial judge made and released to the press his ruling on the following Monday and filed the ruling in Tulare County Superior Court on Tuesday. Petitioner argues that it is improbable and nearly impossible that the court could have read all of that testimony over one weekend.
We begin our consideration of this argument by pointing out that the record does not support petitioner’s contention that the court failed to read the transcripts. In the absence of any evidence in support of that contention other than defense counsel’s assertion that the length of the record precluded such a review within the time available over the weekend, we reach a contrary conclusion based on our examination of the transcripts and the presumption that official duty has been regularly performed (Evid. Code, § 664). Absent an affirmative showing, as here, that the court neglected to perform its duty to read a preliminary hearing transcript on which the case is submitted, such a presumption is not rebutted. (People v. Chamberlin (1966) 242 Cal.App.2d 594, 597 [51 Cal.Rptr. 679].)
But even if this court were to accept petitioner’s assertion that the trial court failed to read all the transcripts as agreed, we would not be persuaded that petitioner was committed on the information without reasonable or probable cause. (§ 999a.)
VI.
Alleged “Improprieties” by the Trial Court
Petitioner also argues that the trial court acted improperly after the conclusion of the arguments on his motion to set aside the information in this case by releasing its decision to the news media in advance of filing the decision with the Tulare County Clerk. As with most of petitioner’s arguments on appeal, he cites no authority to support his request for relief based on the conduct of which he complains. Even if we accept this contention at full face value, it does not detract from the conclusion we have reached that the preliminary hearing record provides reasonable and probable cause for petitioner’s commitment on the information on file in this case.
[891]We deny the petition for a writ of prohibition and dissolve the order staying petitioner’s trial.
Stone (W. A.), J., concurred.
Further statutory references are to the Penal Code unless otherwise indicated.