In re Battin

Opinion

THE COURT. Petitioner, a practicing lawyer and former member of the Orange County Board of Supervisors, was convicted of misuse of public funds (Pen. Code, § 424, subd. 2). Following our receipt of notice of the conviction we referred the matter to the State Bar for report and recommendation. We must now decide whether his offense or the manner in which he committed it warrants discipline.

The facts related to his conviction are set forth at length in the Court of Appeal opinion written by Justice McDaniel, with Kaufman, Acting P. J., and Morris, J., concurring. (People v. Battin (1978) 77 Cal.App.3d 635, 643-646 [143 Cal.Rptr. 731].) The introductory paragraphs read as follows:

[233]“The defendant was charged by indictment with theft (Pen. Code, §§ 484-487), misuse of public funds (Pen. Code, § 424, subd. 2), and presentation of fraudulent claims to the county (Pen. Code, § 72). Trial was by jury. The jury returned verdicts of guilty on the misuse of public funds count, not guilty on the fraudulent claims count, and was hung on the theft count. The court later dismissed the theft count pursuant to the People’s motion. Imposition of sentence was suspended, and defendant was given three years’ informal probation on the condition that he serve six months in the county jail and pay a $3,500 fine plus penalty assessments. The court then suspended five of the six months of time to be served. Execution of the one month term was stayed pending this appeal.

“Before trial, defendant filed two motions to dismiss. One was pursuant to Penal Code section 995. The other motion was based on supposed constitutional infirmities of the statute involved. Both motions were denied by the trial court; petitions for writs of prohibition on both these motions were denied by this court and the California Supreme Court. Otherwise, defendant filed a motion to dismiss based on alleged discriminatory prosecution, conflict of interest, and estoppel, together with an affidavit to disqualify the trial judge. These were also denied. After trial, defendant filed a motion for a new trial; this too was denied. Defendant now comes before us seeking reversal of his conviction on many grounds.” (On Apr. 13, 1978, after the Court of Appeal upheld the conviction, we denied a petition for hearing.)