FLEMING v. SUPERIOR COURT OF ORANGE COUNTY










Filed 12/21/10




CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JAMES FLEMING, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.	G043395 (Super. Ct. No. 07ZF0013) O P I N I O N
THE PEOPLE, Plaintiff and Appellant, v. JAMES FLEMING, Defendant and Respondent.	G043577

STORY CONTINUE FROM PART I….


1. General Considerations
Section 7054 is a short statute. As noted above, it leads off in subdivision (a) with a sentence the operative verb of which is “shall be used.” (To quote it again: “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.” (Italics added.)
But next, in subdivision (b), the statute hastens to explicitly exempt from the ambit of the prohibition against use of district money the use of public money to provide information about the effects of a ballot measure or bond issue if that use is otherwise authorized by law and constitutes a fair and impartial presentation. The exact text is: “Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met: [¶] (1) The informational activities are otherwise authorized by the Constitution or laws of this state. [¶] (2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.” (Italics added.)
The statute finishes up in subdivision (c) by specifying the penalties for its violation.
As noted, section 7054 has not (at least up to now) appeared in any decisions involving criminal prosecutions. In fact, though mentioned in passing in several cases, only one published opinion, San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th 822 (San Leandro), has had occasion to directly construe the statute, and even then in a context somewhat different than the one before us now.
Despite the difference though, the decision in San Leandro is worth reviewing, if only as an introduction to our Supreme Court’s public resource-electioneering jurisprudence: Just before a school board election, a teachers’ union distributed two newsletters to the teacher and staff mailboxes at each school in the district. One newsletter mentioned two union-endorsed candidates in the upcoming election while the second newsletter specifically urged recipients to “volunteer to phone or walk in support of our endorsed School Board Candidates.” (San Leandro, supra, 46 Cal.4th at p. 829.) When district managers found out about it, however, the district prohibited any “materials that contain political endorsements” from any future distributions to the mailboxes. (Ibid.) The union then sued to overturn the district’s new policy, but the Supreme Court ultimately upheld the policy because section 7054 did indeed “ban placing candidate endorsements in school mailboxes.” (Id. at p. 836.) It was pretty obvious that the statute’s use of the word “equipment” could readily “encompass mailboxes specially constructed at taxpayer expense to serve as a school’s internal communication channel, which one group may not use to its exclusive political advantage.” (Id. at p. 835.)
However, in so construing section 7054, the court emphasized the “narrowness” of its holding. (San Leandro, supra, 46 Cal.4th at p. 837.) For one thing, the court said that a school district was not even “compelled to exclude candidate endorsements from school mailboxes” if done “‘on an equitable basis.’” (Ibid., citing Ed. Code, § 7058.) Moreover, the court’s holding did not “extend to union literature” that merely urged members “to become involved in upcoming elections and inform[ed] them how to do so, or engage[d] in public policy discussion in more general terms.” (Ibid.)
But if section 7054 has only been the object of direct attention in one published decision, it is nevertheless part of a general body of law involving public expenditures in political contexts, and has been indirectly illuminated by two other decisions of the Supreme Court, Vargas v. City of Salinas (2009) 46 Cal.4th 1 (Vargas) and Stanson v. Mott (1976) 17 Cal.3d 206 (Stanson). Indeed, in San Leandro, the court observed that the 1995 amendments to section 7054 were made to “more expressly incorporate[] the principles set forth in Stanson.” (San Leandro, supra, 46 Cal.4th at p. 833.)
Moreover, in structure, section 7054 is similar to two other statutes containing prohibitions on the use of public funds for electioneering, specifically Government Code sections 8314 and 54964.[1] Section 54964, as well as the Stanson case itself, were considered by the Supreme Court in Vargas, while section 8314 was recently construed by the Court of Appeal in DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236 (DiQuisto). Like section 7054, sections 8314 and 54964 each first set forth prohibitions on the use of public resources for campaign activity, but then make clear that the prohibitions do not extend to fair and impartial information dissemination otherwise authorized by law.[2]
Stanson is in some ways the fountainhead case in the area, since it is the lead case articulating the constitutional due process limits on the use of public funds for campaigning. Indeed, as recently noted in Vargas, the distinction between campaigning and impartial information dissemination finds its origins in Stanson. (See Vargas, supra, 46 Cal.4th at p. 7 [“In Stanson . . . we explained that because of potential constitutional questions that may be presented by a public entity’s expenditure of public funds in connection with a ballot measure that is to be voted upon in an upcoming election, there is a need to distinguish between (1) ‘campaign’ materials and activities that presumptively may not be paid for by public funds, and (2) ‘informational’ material that ordinarily may be financed by public expenditures.”].)
In specific terms, Stanson held that the director of a state department of parks and recreation could not authorize his department to spend $5,000 of public funds to promote the passage of a bond issue to acquire more parkland. The case came up to the Supreme Court on demurrer, and the key point was that the authorization was promotional rather than informational.[3]
More recently, in Vargas, the high court had occasion to apply Stanson in the context of certain expenditures by a city in the face of a ballot measure to cut a city utility users tax. Those expenditures by the city were: (1) a one-page flyer that described the ballot measure and identified the city services that would be eliminated or reduced if the measure passed; (2) a city-published quarterly newsletter that also, in several articles, identified various services and programs that would be cut if the measure were passed; and (3) maintenance of a city website that contained a report about all the cuts that would occur if the measure passed. (See Vargas, supra, 46 Cal.4th at pp. 11-13.)
As the Vargas court explained, these particular activities were not “improper campaign materials or activities under the standard set forth in Stanson” because they really weren’t campaign materials such as “bumper stickers, mass media advertisement spots, billboards, door-to-door canvassing, or the like.” (Vargas, supra, 46 Cal.4th at pp. 8-9.)
On the other hand, the Vargas court also reigned in an “express advocacy” standard which the intermediate appellate court had used, relying on section 54964, to justify the expenditures. “Nothing” in that statute, said the court, actually granted authority to the city “to pay for communications or activities that constitute campaign activities under Stanson . . . so long as such communications do not ‘expressly advocate’ the approval or rejection of a ballot measure or candidate.” (Vargas, supra, 46 Cal.4th at p. 29.)[4]
Following in Vargas’ wake, DiQuisto likewise upheld expenditures which, though certainly related to an election, did not rise to the level of “campaign” activities. There, in collective bargaining negotiations between a county and several public-employee unions, the county bargained for union agreement not to support a union sponsored ballot measure to mandate binding arbitration with the county. Plaintiffs, who were basically allied with the unions, then sued the county for the waste of public resources in “discussing the unions’ nonsupport of the proposed ballot initiative.” (DiQuisto, supra, 181 Cal.App.4th at p. 264.) Importantly, the court recognized that the county’s communications could not claim impartiality -- after all, the county really did oppose the ballot measure. (See id. at p. 265.) Even so, the proposals were part of contract negotiations, no election campaign was as yet “underway,” and the audience was not the “‘electorate per se but only potentially interested private citizens’” (indeed, the union negotiators themselves!) and there was “‘no attempt to persuade or influence any vote.’” (Id. at pp. 265-268.) Thus the DiQuisto court readily held that the “activity” (really simply using time in negotiations to recognize county opposition to the ballot measure[5]) was not illegitimate campaign activity.
The DiQuisto case also involved an e-mail sent by a county supervisor to about 1,500 individuals, encouraging them to “educate themselves” about the ballot measure and attaching a copy of a newspaper editorial that urged a no vote on it, an issue which prompted the court to look at section 8314, mentioned above. Section 8314 precludes use of public resources for “a campaign activity,” though it defines campaign activity to not include “the incidental and minimal use of public resources, such as equipment or office space, for campaign purposes.” The union-allied plaintiffs argued that the e-mail, complete with its attachment directly urging a no vote on the union-supported measure, constituted express advocacy in violation of the statute. (DiQuisto, supra, 181 Cal.App.4th at p. 271.)
Not so, said the appellate court. The e-mail itself merely suggested voters educate themselves about the initiative, it was “‘moderate in tone’” and not exhortatory, and, even though sent out less than a month before the election, its style and tenor still made it essentially informational. (DiQuisto, supra, 181 Cal.App.4th at p. 272.)
As for the editorial attached to the e-mail, well, it obviously did constitute express advocacy. After all, the editorial explicitly said “vote no” on the union-sponsored measure ballot measure. (See DiQuisto, supra, 181 Cal.App.4th at pp. 273-274.) However, given the “minimal costs” involved and the supervisor’s general intent to inform the recipients of the e-mail on the differences between the union-sponsored measure and two competing county-sponsored measures, the attachment fell within section 8314’s definitional exemption for minimal and incidental activities: The court noted testimony from the supervisor’s chief of staff that there was “voter confusion” and the editorial “contained a good explanation” of the competing ballot measures. (Id. at p. 274.) And any expenditure was clearly de minimis, using equipment already in place. (Id. at p. 275.)
2. Application
Given the structural similarity between section 7054 and section 8314 as construed in DiQuisto, there is no doubt that DiQuisto’s construction of section 8314 sheds light on section 7054. Now, to be sure, there is a small difference in language in the two statutes: Section 7054 prohibits the use of resources “for the purpose of urging the support or defeat of any ballot measure or candidate,” while section 8314 uses the words “for a campaign activity.” And further, there is indeed a detectable difference in the two formulations: One might be able to “urge support or defeat” of a candidate or ballot measure without the traditional paraphernalia of “campaign activity.” (E.g., one neighbor privately tells another, “Candidate X stinks, vote for Candidate Y.”
Even so, there is no reasonable difference given the facts of this case. Whatever purposes the first list (remember that count 2 does not encompass the compilation of the second list), it was not used, by any stretch of the imagination, to “urge” anything, much less even remotely approach the sort of election-connected materials which were the objects of court attention in Stanson, Vargas, and DiQuisto. Here, the list was a strictly internal document -- it didn’t even rise to the level of the “inform yourself” e-mail in DiQuisto, much less the attachment to that e-mail which explicitly urged a certain vote on a certain measure.[6]
Indeed, this case presents this irony: Neither list expressed any opinion at all about the recall. The two lists were just lists of recall supporters, correlated in some cases with school attendance boundaries and children in various schools in the District. Thus they were well within the limitations established in Stanson or Vargas. (See Vargas, supra, 46 Cal.4th at p. 36 [“Stanson does not preclude a governmental entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure.”].)
The interpretative theory put forward by the district attorney’s office is this: The elements of both (1) use and (2) urging support or defeat of a candidate are individually present here. First, the “use” of public resources is to be found in the time and computer database access used to compile the first list. Second, the “purpose or urging the defeat” of the recall (or, alternatively, of urging the support of the then-incumbent board[7]) is present from the inference that Fleming, who is assumed to have disliked the recall because it threatened his job, wanted to put the list to some dark purpose that would defeat the recall. (Readers should recall that when pressed by the trial judge as to how the list might have been used to defeat the recall, the best the trial deputy handling the case could do was say that Fleming might have used it to actually meet with and talk to recall supporters in order to talk them out of proceeding with the recall. The appellate deputy, at oral argument in this court, recognized that that idea was untenable, but did not actually offer another explanation as to how Fleming might have used the list to defeat the recall.)
The theory, readers may note, bears a close resemblance to the contaminating motive theory that underlies the prosecution’s reading of Penal Code section 424: use plus bad motive equals crime.
Preliminarily, we should recognize that, unlike section 424, motive is indeed part of the text of section 7054 insofar as section 7054, unlike section 424, uses the word “purpose.”
However, the prosecution’s reading of section 7054 is ultimately unconvincing, both textually and practically.
Textually, the district attorney’s office’s interpretation of section 7054 unnaturally separates the idea of the use of school resources from the purpose of that specific use, so as to read out of the statute any reasonable connection to the idea of “urging support or defeat.” Let’s take our (previously noncontroversial) example of the football coach who uses school money to buy sleds for the high school football team. The use of the sleds in training may indeed help the team win some games, but if one of the coach’s motives is at all to help the school board win reelection (after all, a winning high school football team might influence a few voters) the requisition is, under the district attorney office’s theory, literally criminal. There is use, there is motive. Under the theory that’s all you need.
Now, no one would seriously contend that the football coach’s requisition is criminal, but can we articulate why‌ And the answer is: because there is no reasonable causal relationship between the requisition of sleds so the football team can win some more games and any “urging the support or defeat” of any candidate as is required to violate the statute. An unnatural separation of the use of the resources from a reasonable connection to “urging the support or defeat” in effect reads the words “urging the support or defeat” out of the statute.
Of course, practically, the district attorney’s office’s interpretation devolves into the absurdity where a school official or even a school teacher who, in using school resources to try to do a good job for a district’s students, would be committing a criminal act if one of his or her motivations were to somehow help an incumbent school board. Needless to say, the district attorney’s office has not cited any legislative history to the effect that the Legislature actually intended such a draconian result.
And then there is the case law. The interpretation posited by the district attorney’s office’s runs counter the construction of an analogous statute, section 8314, in DiQuisto. Remember -- in DiQuisto there was indeed “use” of public resources, and that use was more closely tied to an actual ballot measure than the “use” of resources here: In DiQuisto the resources were the time spent in the bargaining sessions devoted to the question of whether the unions might drop their support of a particular ballot measure. And there was also motive: The county in DiQuisto certainly didn’t like the union’s proposed ballot measure, much like the district attorney’s office has assumed that Fleming didn’t like the prospect of a recall here. In fact, the “use” of resources in DiQuisto -- talking to the union negotiators themselves -- is analogous to the use of the lists to facilitate a meeting with recall supporters, except less directly connected to persuasion. (A little bit like the time spent putting together a meeting, as distinct from the time spent at the meeting itself.) And yet the DiQuisto court held that the because there was “‘no attempt to persuade or influence any vote,’” in those negotiations, there was no illegitimate campaign activity. As the trial court judge noted in the case before us, echoing DiQuisto, neither was there any attempt to persuade or influence any vote here.
We may also observe here that the union’s theory rejected in DiQuisto was analogous to the district attorney’s office’s in this case: use of resources plus some conceivable connection to a ballot measure violates section 8314. We see no reason in this case to depart from DiQuisto’s approach, and need only note again that to depart from it here would effectively read out the words “urging the support or defeat” from the statute.
Finally, there is yet another reason section 7054 was not violated in this case. When the first list was prepared, no recall election had been set -- the idea was just an idea floating around. And the possible “nascent” recall in the future when the first list was prepared was clearly not close enough to a real election to come within the ambit of actually “urging” support or defeat of anything.
On that point, Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of Governments (2008) 167 Cal.App.4th 1229 (Santa Barbara County Coalition) applies a fortiori. There, a county transportation agency went so far as to actually hire a political consultant to survey voter support for a possible extension of a sales tax so as to fund various projects the agency hoped to implement. The consultant determined which arguments for the extension of the tax might be received most favorably by the voters and the “best strategy” to “maximize” voter support for it. (See id. at p. 1234.) And yet that hiring did not offend the rules articulated by our high court in Stanson or Vargas because all the activity happened before any measure had been placed on any ballot. (See Santa Barbara County Coalition, supra, 181 Cal.App.4th at 1239 [“Although a government agency cannot spend public funds in a partisan campaign for the passage or defeat of a ballot measure, we conclude that, in this case, the activity of SBCAG was not electoral advocacy because it was in furtherance of its express statutory duties and occurred before Measure A was qualified for placement on the ballot.”].) As Justice Moreno would later summarize Santa Barbara County Coalition in Vargas: “The Court of Appeal’s conclusion that [the transportation agency’s] actions did not constitute unlawful campaign activity largely turned on the fact that all the activity at issue had occurred before the measure was placed on the ballot.” (Vargas, supra, 46 Cal.4th at p. 45 (conc. opn. of Moreno, J.), italics added.)
To the same effect is League of Women Voters v. Countywide Crim. Justice Coordination Com. (1988) 203 Cal.App.3d 529, 550, where the court recognized the need for some real, scheduled, election. As the court said: “Clearly, prior to and through the drafting stage of a proposed initiative, the action is not taken to attempt to influence voters either to qualify or to pass an initiative measure; there is as yet nothing to proceed to either of those stages. The audience at which these activities are directed is not the electorate per se, but only potentially interested private citizens; there is no attempt to persuade or influence any vote. . . . It follows those activities cannot reasonably be construed as partisan campaigning.” (Italics added.)
Here, as the district attorney’s office acknowledges, the recall campaign was only “nascent” in regard to the first list. Nothing had qualified for any ballot. The lists were strictly internal, hence clearly not devoted to “urging” support or defeat of anyone or anything.
In sum, the compilation of the first list did not come within section 7054’s prohibition against using school district resources “for the purpose of urging” defeat of a recall. The trial court was therefore correct to dismiss count 2.
C. The District Attorney’s Office’s
Appeal on Count 3
While the grand jury indictment alleges that Fleming and McGill conspired, within the meaning of Education Code section 49076 “to access” pupil records without parental consent or judicial order, the district attorney’s office, conceding that Fleming and McGill accessed no confidential pupil records, has effectively abandoned any argument that Fleming and McGill conspired to violate or actually violated Education Code section 49076.[8] As the case is now presented to us in the district attorney’s office’s appeal on the dismissal of the third count, the main argument is that Fleming and his assistant McGill conspired to have the lists prepared for their own illegitimate use, which violated section 182, subdivision (a)(5) of the Penal Code.
The Penal Code provision on which the indictment is based makes illegal conspiring: “To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.”[9]
There is no argument that Fleming and McGill conspired to do anything “injurious” to the public health or morals. We gather, rather, from the district attorney’s office’s briefing that Fleming and McGill conspired to do acts “to pervert or obstruct justice, or the due administration of the laws.” More specifically, the idea is that by agreeing “to use district resources to further their own personal purposes” Fleming and McGill thereby agreed to obstruct justice or the due administration of the laws.[10]
We have already rejected the underlying substance of this conspiracy theory: As shown above, even if Fleming and McGill had, as one of their motives in compiling the list, the hope of, in some way, eventually heading off the recall (we have called this the “contaminating motive” theory of section 424), they were still within their lawful authority to compile the lists, and the compiling in no way constituted a violation of section 7054.
Moreover, there is no reasonable connection between the compiling of the lists and anything that even remotely resembles classic obstruction of justice or the due administration of the laws. We may illustrate by contrasting what happened here with two California Supreme Court cases that figure prominently in the district attorney’s office’s briefing.
First is Lorenson, supra, 35 Cal.2d 49. Lorenson could have been the basis for a film noir screenplay: A 1950’s Los Angeles police captain despised a dishonest businessman, who allegedly took away a widow’s house for a nine dollar repair bill. So the police captain orchestrated a beating of the businessman. But when the suspects in the beating were brought to the police station, they (mysteriously) were let go, thus hampering the investigation of the assault on the businessman. That, and recordings that might have linked the police captain to the assault went missing.
Lorenson was a classic case of obstruction of justice -- the police captain hid evidence that tied him to the beating. (See Lorenson, supra, 35 Cal.2d at pp. 59-60 [“A conspiracy with or among public officials not to perform their official duty to enforce criminal laws is an obstruction of justice and an indictable offense at common law. . . . In the same category is a conspiracy to obtain the release of a person charged with a felony by presenting a worthless and void bail bond. Such a conspiracy has been held to be a perversion of the due administration of the law, and an offense within the meaning of subdivision 5 of section 182 of the Penal Code.”].) But in this case there is no argument that Fleming or McGill had any duty to enforce criminal laws, or hid any “evidence.”
Second is Calhoun v. Superior Court (1955) 46 Cal.2d 18. There, a county supervisor was indicted in what was essentially a shakedown scheme to extort campaign contributions from liquor licensees. But in this case there is no assertion, and certainly no evidence, that Fleming or McGill used, or ever planned to use, the lists in this case to intimidate or harass any recall supporters or their children.
The district attorney’s office relies on People v. Martin (1982) 135 Cal.App.3d 710 for the proposition that a conspiracy under section 182, subdivision (a)(5) can consist entirely of legal actions, even without a criminal objective. In that regard the district attorney’s office points to section 182, subdivision (a)(1), which already makes conspiracies to commit crimes illegal -- the suggestion seems to be that if a prosecutor deems an action somehow wrongful, even if not criminal, that can be a basis for a conspiracy charge under section 182.
In the first place, we have already noted that the statute itself requires a conspiracy to pervert or obstruct justice, or the due administration of the laws. And the district attorney’s office’s briefing in this case never explains how -- independent of any substantive violation of section 424 or section 7054 -- the compiling of the lists could constitute “perversion or obstruction of justice, or the due administration of the laws.”
But in any event, the theory relies on an overreading of Martin. All criminal conspiracies require at least a criminal objective, even if all the specific actions taken to implement that criminal objective are otherwise not criminal.[11]
Indeed, the facts in Martin itself readily show the need for a criminal objective: There, a municipal court judge had an arrangement with a criminal defense attorney to give that defense attorney’s clients special treatment in driving-under-the-influence cases. The special treatment took a number of forms: The judge would have docket sheets falsified to show that deputy district attorneys handling drunk driving cases had agreed to reduced charges in cases where the deputies would never have so agreed (Martin, supra, 135 Cal.App.3d at p. 715). The judge would declare prior drunk driving convictions unconstitutional so they would be stricken, in the process falsifying docket sheets to make it look like a deputy had been present in court to object (when the deputy hadn’t been in court). (Id. at pp. 715-716.) The judge would also give a defendant who was required to serve a minimum of 48 hours in county jail credit for having already served those hours, when in fact the defendant hadn’t. (Id. at p. 716.) And the judge would reduce the usual fine for defendants of the favored attorney. (Ibid.) As the appellate court pointed out in rejecting the judge’s argument that the elements of conspiracy had not been established (see ibid.), there was enough evidence to show “the intent to commit the offense which is the object of the conspiracy” (see id. at p. 722) because there was enough evidence to show “an intent to do the acts constituting the elements of an obstruction of justice.” (Ibid.)[12] In Martin, as in Lorenson, that criminal objective was obstruction of justice.
We have already eliminated all possible criminal objectives based on the compilation of the lists. Fleming and McGill were within the authority of the law to compile the lists. It is fundamental that no one can be held criminally liable for conspiracy to do acts that are perfectly lawful and to which there is no criminal objective. The trial court was therefore correct to dismiss count 3.
D. The District Attorney’s Office’s Delay Contention
Lastly, there is the argument that, by virtue of section 1510 of the Penal Code,[13] Fleming simply brought his attack on the indictment in the trial court too late. Section 1510 provides: “The denial of a motion made pursuant to Section 995 or 1538.5 may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant’s arraignment on the complaint if a misdemeanor, or 60 days following defendant’s arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.”
Fleming was arraigned in July 2007. He did not file his section 995 motion to set aside the indictment for an absence of probable cause until more than two years later, in October 2009. The question is thus whether Fleming comes within one of the two exceptions to section 1510, either (1) lack of awareness of the issue or (2) lack of an opportunity to raise it.
The law on point has been summarized in Ghent v. Superior Court
(1979) 90 Cal.App.3d 944, 950-951 (Ghent): “Section 1510 does not prevent a defendant in a felony prosecution from making a section 995 motion at any time before trial; it operates only to preclude pretrial appellate relief from an order denying one which (1) was made more than 60 days after his arraignment and (2) does not fall within either of the exceptions for which section 1510 expressly provides. . . . The 60-day bar may therefore not be asserted in the trial court when he makes the motion, and it must be raised in the appellate court when he challenges an order of denial by filing a petition for extraordinary relief pursuant to section 999a. . . . Once it is raised and established in the appellate court, he bears the burden of showing that he is within one exception or the other. The stop-or-go question thus presented is whether the bar applies or one of the exceptions does, and the answer turns upon a determination of fact to be made by the appellate court.” (Italics added.)
In the present case, both unawareness and lack of opportunity are present.
As to awareness, there is one published opinion, People v. Webster (1991)
54 Cal.3d 411 (Webster), that has dealt with the problem of ineffective assistance of counsel in the section 1510 context. Webster rejected an ineffective assistance claim because the defendant could show no actual prejudice from his attorney’s failings. We think the fair implication of Webster is that if there is ineffective assistance in not timely bringing a meritorious section 995 motion, then the section 995 motion may be reviewed on the merits. We note in particular that the section 995 motion in Webster involved issues that were actually considered on the merits pretrial and could also be considered by way of regular appeal posttrial.[14]
This case, by contrast with Webster, is full of prejudice from Fleming’s prior counsel’s ineffective assistance. We have already demonstrated that the prosecution’s legal theories are untenable. Forcing Fleming to suffer the expense of trial based on those theories would be a miscarriage of justice. And, in contrast to Webster, the section 995 motion was brought pretrial, so there is no appreciable prejudice to the prosecution for the delay: The district attorney’s office has lost nothing by consideration of Fleming’s section 995 motion on the merits. We stress again: We have considered the merits of Fleming’s section 995 as presenting a strictly legal issue based on the district attorney’s office’s own version of the facts, and even under that version (i.e., that Fleming himself ordered subordinates to compile the lists, and in so ordering them he had at least a motivation that was in some way antithetical to the recall), Fleming still committed no crime.
There is also the matter of transcripts. The grand jury transcripts in this case are voluminous -- no less than five volumes (and that’s not counting exhibits, which take up the better part of two volumes). Those volumes would necessarily have had to be read and digested by Fleming’s counsel to present a section 995 motion. Particularly given the delay in the actual preparation of the transcripts and forwarding to counsel, it is unlikely all the reading could have been completed, much less a proper motion prepared, in 60 days. (Accord, Ghent, supra, 90 Cal.App.3d at p. 952 [transcript delay one of reasons that defendant was within “no opportunity” exception to section 1510].)
IV. CONCLUSION
Let us make clear what we do not say. We express absolutely no opinion about the merits of the recall effort, or Fleming’s administration of the District. Those are political matters beyond the purview of this court. Nor do we express any opinion about any civil suits or settlements that might have arisen out of the lists. This case only concerns criminal charges brought against the former superintendent.
Moreover, this opinion should in no way be read as countenancing the actual political use of a list of recall supporters as part of a political campaign opposing a recall of a school board. Nor should this opinion be read for the idea that the use of a list of recall supporters to in any way intimidate or disadvantage the children of recall supporters would not be, in some way, within the reach of the law. (Exactly how we need not say now.)
But let us also make clear what we do say. The district attorney’s office has presented no evidence whatsoever that the lists were used in any political campaign, or that they were used to intimate anybody, or that any child in the District was in any way affected by those lists or their preparation. Their compilation was not criminal.
This case in fact recalls the recent concurrence of the Chief Judge of the Ninth Circuit in United States v. Goyal (9th Cir. 2010) ___ F.3d ___ (conc. opn. of Kozinski, J.). Goyal was a case where the defendant clearly did something wrong, even if not criminal -- a far cry from a school superintendent who might have been legitimately curious about the demographic characteristics of people who were dissatisfied with him and his policies. Judge Kozinski’s observations are, if anything, more readily applicable to this case than are to Goyal’s, and even if they are directed to federal, rather than as here, state prosecutors: “This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. . . . This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. [Citations.] [¶] This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal.” (Id. at p. ___ (slip. op. at pp. 19761-19762) (conc. opn. of Kozinski, J.)
The trial court’s judgment dismissing counts 2 and 3 is affirmed. The trial court is directed to enter judgment dismissing count 1.



SILLS, P. J.
WE CONCUR:



RYLAARSDAM, J.



MOORE, J.



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