Neil Derry case demurrer

8/6/2019 Neil Derry case demurrer

1/14

1C 2W~ .c:r~00.u_OzO0o 6

789

101112wv: .: : : J0 13;r : V~ > -. . . . 14" "

J zJ,. I . I ' " 15f-- 0: c r- 16:ir-< 17~ 18

9202122232425262728

BROWN WHITE &NEWHOUSE LLPGEORGEB. NEWHOUSE, JR. (BarNo. 107036)gnewhouse(C4brownwhitelaw.comNANNINA L. ANGIONI (Bar No. 238052)nangioni@bl'ownwhitelaw hcom333 Saudi H O . Q e Street, 40t FloorLos Angeles, California 90071-1406Telephone: 213.613.0500Facsimile: 213.613.0550Attorneys for DefendantNEILAND KENNETH DERRY

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF SAN BERNARDINO, SAN BERNARDINO COURTHOUSE

PEOPLE OF THE STATE OF CALIFORNIA, Case No.: FSB 1101877

Defendant.

Judge: Hon. Michael M. DestDept.: S23DEFENDANT NEILAND KENNETHDERRY'S DEMURRER TO FELONYCOMPLAINT

Plaintiff,v.NEILAND KENNETH DERRY,

TO THIS HONORABLE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OFRECORD HEREIN:

PLEASE TAKE NOTICE that on June 9,2010, at 8:00 a.m., or as soon thereafter as tmatter may be heard, in Department S23 of the above-entitled Court, located at 351 NorthArrowhead Ave., San Bernardino, CA 92415-0220, Defendant Neiland Kenneth Derry("Defendant") will and hereby does bring on for hearing his Demurrer to the every Count ofFelony Complaint filed by the People of the State of California ("Plaintiff') pursuant to PenaCode Sections 950, 952, and 1002-1005. Defendant respectfully brings this Demurrer on thefollowing grounds:

1DEFENDANT NEILAND KENNETH DERRY'S DEMURRER TO FELONY COMPLAINT


2/14

123456789

101112

l

13Vl> - 14' " ' "z;L 150!-o 16

. . . " t. . ,_ .

< 17189

202122232425262728

filed was false (or forged). (Pen. Code, 952, 1004, subds. (2), (4).)

Plaintiff fails to state a violation of a public offense regarding its second countOffering False or Forged Instruments for Filing because Plaintiff fails to allegeessential element of that offense: to wit, that Defendant knew the document he

Plaintiff fails to state facts that constitute a violation of a public offense as toCount 3 for Failure to Report a Contribution because the Complaint specificallyalleges facts that actually confirms that Defendant never received a"contribution," as that term is defined by the Political Reform Act, from Arnol("A.H.") Stubblefield ("Stubblefield") and therefore, Defendant did not have treport any contribution from Stubblefield on his Recipient Committee CampaigStatement, California Form 460 (hereafter, "Statement" or "460"). (Pen. Code1004, subd. (4).)

Plaintiff fails to state facts that constitutes a violation of a public offense as toCount 1 for Perjury because Plaintiff s Count 1 is based wholly on Defendant'sfiling of the 460 without reporting Stubblefield's contribution to the InlandEmpire Political Action Committee ("IEPAC'); since the Complaint andCalifornia law establishes that Defendant did not have to report such"contribution" from Stubblefield, it is impossible for him to have committedperjury by failing to make such report. (Pen. Code, 1004, subd. (4).)

Plaintiff fails to state facts that constitute a violation of a public offense as toCount 2 for Offering False or Forged Instruments for Filing because PlaintiffsCount 2, like the inclusion of Count 1, is based wholly on Defendant's filing othe Statement without reporting Stubblefield's contribution to the Inland EmpiPolitical Action Committee ("IEP AC"), which Defendant was not legally oblito report. (Pen. Code, 1004, subd. (4).)

Defendant's Demurrer is based on this Notice, the Memorandum of Points andAuthorities filed herewith, those matters of which the Court may take judicial notice, therecords and pleadings on file, deemed to be on file, or of which notice may be taken at the ti

2DEFENDANT NEILAND KENNETH DERRY'S DEMURRER TO FELONY COMPLA1NT


3/14

123456789

10111213: Vl

r 14" " "Z".:: 150r- - 16f-;- < 17

189

202122232425262728

Attome s for DefendantNEILAND .;NNETHDERRY

this Demurrer is heard, and the arguments of counsel made at the time of the hearing.Respectfully submitted,

DATED: June 8, 2011BROWN WHITE & NEWHOUSE LLP

By

3D EFE ND ANT NE ILAND KE N'NE TH D ER RY 'S D EM U RR ER TO F8LQNY COMPLA rN 'p


4/14

123456789

10111213en

> -" " ' 14z~ 150f- 16-< 17

189

202122232425262728

DEMURRER TO COMPLAINTDefendant Neiland Kenneth Derry ("Defendant") demurs to Plaintiff People of the St

of California's ("Plaintiffs") Felony Complaint on the following grounds:1. Plaintiff fails to state a violation of a public offense as to Count 2 for Offering

False or Forged Instruments for Filing because Plaintiff fails to allege an essential element othat offense: to wit, that Defendant knew the document he filed was false or forged. (Pen.Code, 952, 1004, subds. (2), (4).)

2. Plaintiff fails to state facts constituting a violation of a public offense as to Cou3 for Failure to Report a Contribution because Plaintiff specifically alleges facts that actuallyconfirms that Defendant never received a reportable "contribution," as that term is defined bthe Political Reform Act, from Arnold "A.H." Stubblefield ("Stubblefield") and therefore,Defendant was not legally required to report a contribution from Stubblefield on his RecipienCommittee Campaign Statement, California Form 460 (the "Statement" or "460"). (Pen. Co 1004, subd ..(4).)

3. Plaintiff fails to state facts that constitute a violation of a public offense as toCount 1 for Perjury because Plaintiffs Count 1 is based wholly on Defendant's filing of theStatement without reporting Stubblefield's contribution to the Inland Empire Political ActionCommittee ("IEPAC"), which Defendant did not have to report. (Pen. Code, 1004 (4).)

4. Plaintiff fails to state facts that constitute a violation of a public offense as toCount 2 for Offering False or Forged Instruments for Filing because Plaintiffs Count 2 is bawholly on Defendant's filing of the Statement without reporting Stubblefield's/ I II I I1/1/ I II I I1/1I I I

4DEFENDANT"Nli ll..AND KENNETH DERRY'S DEMURRER TO FELONY COMPLAINT


5/14

123456789

10111213V

> - 14" ' " 'z 150r- 16. . . . .< 17

189

202122232425262728

DATED: June 8, 2011

contribution to the Inland Empire Political Action Committee ("IEP AC"), which Defendantnot have to report. (Pen. Code, 1004, subd. (4).)



6/14

123456789

10111213V

> - 14" '"Z~ 150r 16~< 17

189

202122232425262728

MEMORANDUM OF POINTS AND AUTHORITIESI.

INTRODUCTION AND FACTUAL SUMMARYDefendant Neiland Kenneth Derry ("Defendant" or "Mr. Derry") brings this Demurrer

("Demurrer") to the Felony Complaint ("Complaint") brought by the People ofthe State ofCalifornia ("Plaintiff') as a result of Plaintiffs futile and inadequate attempt to single out onpolitician for entirely legal conduct. The facts pleaded in the Complaint and the supportingDeclaration of Shannon Williams of the California Department of Justice (the "Declaration")demonstrate that Defendant has not committed a cognizable public offense. Because the facin the Complaint and the Declaration confirm, beyond reasonable dispute, that Defendant'sconduct was entirely proper and within the scope of the law, Plaintiff should not be permittedamend the Complaint to allege that Defendant committed any offense related to the transactioin question. Accordingly, Defendant respectfully requests that this Court sustain Defendant'sDemurrer and dismiss the Complaint in its entirety without leave to amend.

Defendant is the duly elected 3rd District Supervisor for the County of San Bernardino(Declaration at 2: 18.) During his campaign in 2007, Defendant contacted A.H. Stubblefield("Stubblefield"), a local property owner and developer, in the hopes of soliciting a contributito his campaign for County Supervisor. (Id. at 2:19,3:1-2.) Stubblefield was informed thatcould make a campaign contribution to the Inland Empire Political Action Committee("IEPAC") because "it was [Defendant's] understanding that the [IEPAC] was 'probably'going to support his campaign." (Id. at 2:4-5.) Use of the word "probably" is critical here.There is no allegation of an agreement, promise or assurance that such contributions to the Pwould, in fact, be provided, dollar for dollar, to Mr. Derry's campaign.

On May 31, 2007, Stubblefield made a $5,000 contribution to the IEPAC. (Id. at 2: 121.) At the time Stubblefield made his contribution, the IEPAC was controlled by CountyAssessor and former chairman of the Board of Supervisors, William Postmus ("Postmus").at 2:21-23.) The IEPAC deposited Stubblefield's contribution on June 25,2007. (Jd. at 3:225.) On June 28,2007, Postmus directed the IEPAC treasurer to make a $10,000 contributio



7/14

123456789

10111213,if,

> - - 14"-'z~ 150f- 16

. .. . L . .. .. .:

- < 17.. 18

9202122232425262728

7

to Defendant's campaign. (Id. at 3:24-25.) Defendant deposited this contribution into hiscampaign account on July 8, 2007. (Id. at 3:27-28.) As he was required to do, Defendantreported the $10,000 contribution from the IEP AC on the Recipient Committee CampaignStatement, or California Form 460 (the "Statement" or "460") he filed on July 25, 2007 withthe San Bernardino County Registrar of Voters. (Id. at 4:1-5.)

On April 25, 2011, the California Attorney General filed the Complaint againstDefendant. The Complaint, citing the above facts, alleges that Defendant committed the criof Perjury (Count 1; Pen. Code, 118), Offering False or Forged Instruments for Filing(County 2; Pen. Code, 115), and Failure to Report a Contribution (Count 3; Gov. Code, 84302).

Each count in the Complaint filed by Plaintiff is legally defective, and the Complaintmust be dismissed for the following reasons:

Count 2 forOffering False or Forged Instruments for Filing fails becausePlaintiff failed to plead a required element of the offense-that Defendantknew the Statement was false or forged at the time of fIling. (Pen. Code, 952, 1004, subds. (2), (4).) The offense requires that the Defendant "knowingprocure[] or offer[] any false or forged instrument to be ... recorded." (PenCode, 115, subd. (a) [emphasis added].) Plaintiff simply failed to allege thaDefendant knew that the Statement which his campaign filed with the FPPC wfalse or forged, a necessary element of the offense. To sufficiently plead a cofor a violation of Penal Code Section 115, Plaintiff must plead that knew thatStatement was false or forged. (People v. Butler (1917) 35 Cal.App.357, 369.Plaintiff simply did not do so. Accordingly, Count 2 must be dismissed.

Count 3IGr Failure to Report a Contribution fails because the facts allegein the Complaint and the supporting Declaration affIrm that Defendant dnot commit any public offense. (Pen. Code, 1004, subd. (4).) A violationGovernment Code Section 84302 requires that the alleged offender fail to repo"contribution" as that word is defined in the statute. Defendant reported the

. nHFENP~r NE'lLAND KEN:NET l: rt 5: aRRY " :') DEMU RRER TO FELONY COMPLAINT


8/14

123456789

101112LJ

), 13 -

L J . . . , 14Z

L J d. 152 0r 16

.. . : . . . . . .~ 17189

202122232425262728

Finally, Count 1 for Perjury and Count 2for Offering False or ForgedInstruments for Filing fail because Plaintiff did not commit Count 3-henot knowingly fail to report a "contribution." (Pen. Code, 1004, subd. (Plaintiff bases Counts 1 and 2 on the fact that Defendant filed the Statement

$10,000 contribution which he received from the IEPAC in his Form 460. (Jd4:1-5.) Count 3 is wholly based on Defendant's failure to report a contributionfrom Stubblefield to Defendant. However, Defendant did not receive a"contribution" from Stubblefield, and there is no factual basis alleged in theComplaint as to which the Court might conclude that IEPAC was acting as an"intermediary" under FPPC Reg. section 18432.5. Mr. Derry cannot fail to rea "contribution" that he did not receive. Accordingly, Count 3 must be dismisbecause the facts stated in the Complaint and the Declaration affirm thatDefendant reported the only "contribution" at issue-the $10,000 contributionfrom the IEPAC. No crime was committed.

under penalty of perjury and failed to report a "contribution." As noted aboveDefendant reported every "contribution" actually received by his campaign.Therefore, Defendant's Statement was not false or forged and Defendant didcommit perjury by filing it. Accordingly, Counts 1 and 2 must be dismissed.

For these reasons, Defendant respectfully requests that this Court grant his Demurrerdismiss the Complaint in its entirety without leave to amend.

II.ARGUMENT

"[R]easonable doubts in determining the identity of the offense charged are to beresolved in the defendant's favor." (People v. Schueren (1973) 10 Ca1.3d 553, 558.) Adefendant may demur to a complaint inter alia when it appears on the face of the complaintthat: (1) the complaint does not substantially conform to the provisions of Penal Code Secti952, or (2) the facts stated do not constitute a violation of a public offense. (Pen. Code, 1subds. (2), (4).) Penal Code Section 952 provides that "each count [in a complaint] shall

8D E F E NDAN TN E TL AN D 'K '. .E N NE T Ii DERRY ' S D EM U R R E R T O F EL ON Y C OM P LA IN T


9/14

123456789

10111213V

> -w 14zo c t . 150f-; 16i-< 17. 18

9202122232425262728

9

contain, and shall be sufficient if it contains in substance, a statement that the accused hascommitted some public offense therein."

California courts have consistently held that the accusatory pleading must identify eacessential element of the charged offense. (People v. Swinney (1975) 46 Cal.App.3d 332,443[Accusatory pleadings must "give the accused notice of the essential elements of theprosecution's case]"; People v. Holt (1949) 93 Cal.App.2d 473,476 [An accusatory pleading"an indictment or information need only charge the essential elements of the statutoryoffense"]; People v. Morales (1926) 77 Cal.App. 483, 488 ["[E]ach of the essential ingredienof a public offense, as such offense is defined by law, should be set forth in an information oindictment in clear and understandable language."]) Each of the Counts alleged in theComplaint fails because Plaintiff fails to plead essential elements of the charged offenses analleges facts that do not constitute a violation of a public offense.A. PLAINTIFF'S SECOND COUNT FOR OFFERING A FALSE INSTRUMENT

FOR FILING FAILS BECAUSE THE COMPLAINT FAILS TO ALLEGE THADEFENDANT 'KNOWINGLY' COMMITTED THE OFFENSECount 2 which charges a violation of Offering a False Instrument for Filing here fails

because Plaintiff failed to plead a necessary element of the charged offense-that Defendantknew that the Statement was false or forged. Penal Code Section 115, subdivision (a), provithat it is a felony to "knowingly procurer] or offer[] any false or forged instrument to be ...recorded in any public office within this state." (Emphasis added.) The applicable juryinstruction also clarifies that the prosecution must prove as an essential element of the offensthat "[w]hen the defendant did that act, [he] knew that the document was (false/[or]forged."(Judicial Council of California Criminal Jury Instructions, Instruction No. 1945.)

Plaintiff failed to allege that Defendant knew that the Statement was false or forged athe time of filing. In People v. Butler, supra, 35 Cal.App.357, the defendant was prosecutedsubmitting a fraudulent claim to a county. The appellate court affirmed the trial courtsustaining a demurrer to the entire action based on Penal Code Section 952 because the distrattorney did not adequately plead that the defendant knew of the claim's falsity. (Id. at 368.Citing the defendant's brief, the court held that "in order to constitute fraud there must be bo

DEFEN ,f :V \ :NT NSf LAND Ke )'I NIITH DERRY'S DEMURRER TO PI'LO'NY COMPLAINT


10/14

123456789

10111213Vl

> - 14~Z:L 150f- 16if-


11/14

123456789

101112

)J 13V> -J 14' " ' "z 150cr - . . 16f - - -- < 17

189

202122232425262728

subd. (b)(2)(D) (emphasis added).) '''Made at the behest of means made under the controlat the direction of, in cooperation, consultation, coordination, or concert with, at the requestsuggestion of, or with the express, prior consent of." (Admin. Code tit. 2, 18225.7, subd.(a).)

Stubblefield's contribution to IEPAC was not a contribution to Defendant's campaignand Defendant was not required to report it. At the time Stubblefield made his contribution,IEPAC was controlled by William Postmus, not Defendant. (Id. at 2: 19-23.) The PoliticalReform Act clearly provides that Stubblefield's $5,000 contribution to IEPAC, even if made"consultation, coordination, or concert with" Defendant, "is not a contribution to" Defendant(Gov. Code, 82015, subd. (b)(2)(D).) Rather, Stubblefield made a contribution to IEPAC,and not Defendant, for purposes of Government Code Section 84302. Defendant reported thonly contribution to his campaign that Plaintiff identifies-the later $10,000 contribution frothe IEPAC. (Id. at 4:1-5.) Accordingly, Count 3 must be dismissed because the facts statedthe Complaint affirmatively establish that Defendant did not violate any law by not reportingStubblefield's contribution to IEPAC.C. PLAINTIFF'S FIRST AND SECOND COUNTS FAIL BECAUSE PLAINTIFF

REPORTED ALL "CONTRIBUTIONS" AND THE STATEMENT WAS NOTPERJURIOUS, FALSE, OR FORGEDFinally, Counts 1 and 2 must be dismissed because they are premised on the legally

deficient assumption that Defendant improperly failed to disclose Stubblefield's contributionIEPAC. Count 1 for Perjury requires a false statement. (Pen. Code, 118.) Count 2 forOffering a False or Forged Instrument for Filing requires the offering of false or forgeddocument. (Pen. Code, 115, subd. (a).) Here, the alleged false statement and false 460 Fiare the same-Mr. Derry's Form 460 in which he disclosed receipt ofa $10,000 from IEPA(Complaint at 2:4-8; 2: 15-16.) Plaintiff alleges the Statement is false or forged becauseDefendant did not report Stubblefield's contribution to the IEPAC. (Id.)

As noted in Section II.B. above, however, the Form 460 filing did not contain a falsestatement (by omission) and is not a false or forged document because Stubblefield nevermade a contribution to Defendant and Defendant was not required to report Stubblefield's

11DEFENDANT NElLANO KENNETH DERRY'S DEMURRER TO FELONY COMPLAINT


12/14

123456789

101112w,'":l 13:x : V)~ " > - -~ U.l 14

'i z~ ~ 15f-- 0:- 16

Z l-'$ - < 170~ 189

202122232425262728

contribution to the IEPAC on his Statement. Plaintiff bases Counts 1 and 2 purely onPlaintiffs incorrect assumption that the Statement includes a false assertion. However, thefacts offered by Plaintiff only establish that, under the Political Reform Act, Stubblefield maa contribution to IEP AC, not to Defendant. Defendant did not have to include Stubblefield'scontribution to IEPAC on his Statement. Therefore, the Statement-which included the$10,000 from rEPAC to Defendant-was not a false or forged document and cannot form thbasis for Counts 1 and 2. Accordingly, Defendant respectfully requests that the Court dismiCounts 1 and 2 without providing Plaintiff leave to amend.

III.CONCLUSION

For the foregoing reasons, Defendant Neiland Kenneth Derry respectfully requests ththe Court sustain his Demurrer as to Counts 1,2, and 3 in Plaintiff's Felony Complaint withleave to amend.DATED: June 8, 2011

GEOR I" E B . NEWH . JR .NANNINAL. ANGIONIAttorneys for DefendantNEILAND KENNETH DERRY

12DEFENDANT NEJLAND KENNETH DERR Y'S DEMURRER TO FELONY COMPLAINT


13/14

123456789

1 011: C/)'> - 1 2w

Zr: L 130!- 1 4r-< 1 5

1 67

1 81 92 02 12 22 32 42 52 62 72 8

PROOF OF SERVICESTATE OF CALIFORNIA, COUNTY OF LOS ANGELESPeople of the State of California v. Neiland Kenneth DerryCaseNo. FSB 1101877

I am employed in the County 0 Los Angeles, State of California. I am over the ageof eighteen year~ and not a party to the within action. My business address is 3 3 3 SouthHope Street, 4 0 t Floor, Los Angeles, California 9 0 0 7 1 .On June 9, 2 0 1 1 , I served the following document(s) described as: DEFENDANTNEILAND KENNETH DERRY'S DEMURRER TO FELONY COMPLAINT in thisaction by placing true copies thereof enclosed in sealed envelopes and/or packages addressedas follows:SEE ATTACHED SERVICE LIST

o BY MAIL: I deposited such envelope in the mail at 333 South Hope Street, 40th Floor, LosAngeles, California 90071. The envelope was mailed with postage thereon fully prepaid. Iam "readily familiar" with the firm's practice of collection and processing correspondence fomailing. It is deposited with the U.S. Postal Service on that same day in the ordinary courseof business. I am aware that on motion of the party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one (1) day after date of depositfor mailing in affidavit.

o BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to Rule2008 of the California Rules of Court. The telephone number of the sending facsimilemachine was 213/613-0550. The name(s) and facsimile machine telephone number(s) of theperson(s) served are set forth in the service list.o BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the

same day to an authorized courier or driver authorized by the overnight service carrier toreceive documents, in an envelope or package designated by the overnight service carrier.~ BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the aboveaddressee( s).o BY ELECTRONIC MAIL: On the above-mentioned date, from Los Angeles, California, Icaused each such document to be transmitted electronically to the party(ies) at the e-mailaddressees) indicated below. To the best of my knowledge, the transmission was reported ascomplete, and no error was reported that the electronic transmission was not completed.lEI STATE: I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct.Executed on June 9 , 2 0 1 1 , at Los Angeles, California.

Thomas M. Brown

13DEFENDANT NEILAND KENNETH DERRY'S D E M U R R E R TO FELONY COMPLAINT415004.1


14/14

123

456789

10.LJJ 11r : Vl> -

12: . . ul Z" ~ 13-- 0r : t- 14- . . . . . .- 15

16i 171819202122232425262728

SERVICE LISTPeople of the State of California v. Neiland Kenneth DerryCase No. FSB 1101877

Attorneys for the PEOPLE OF THESTATE OF CALIFORNIA:Kamala D. HarrisAttorney General of CaliforniaDane GillettChief Assistant Attorney GeneralGary W. SchonsSenior Assistant Attorney GeneralJames D. DuttonSupervising Deputy Attorney GeneralEmily R. HanksDeputy Attorney General110 West A StreetSan Diego, CA 92101

14

Documents

Neil Derry case demurrer