Defendant’s convictions for misappropriation of public funds (Pen. Code, § 424) reversed because the instructions improperly allowed the jury to convict based on a finding that defendant was a city officer without also finding that she was charged with financial responsibility of public funds. Spaccia, the former assistant city manager of the City of Bell, was convicted of five counts of misappropriation of public funds and related offenses. On appeal, Spaccia argued her misappropriation convictions should be reversed because the trial court gave incorrect jury instructions. Held: Reversed. In order for a public officer to be convicted of violating section 424, he or she must be charged with “the receipt, safekeeping, transfer or disbursement of public moneys.” (People v. Hubbard (2016) 63 Cal.4th 378.) In Spaccia’s case, the jury was instructed that the prosecution needed to prove that Spaccia “was an officer of the City of Bell, or a person charged with receipt safekeeping, transfer, or disbursement of public moneys.” (See CALJIC No. 7.26.1.) Applying basic principles of grammar, the court agreed with Spaccia that the use of the word “or” created two alternative classifications: officers of Bell, and persons charged with financial responsibility. This distinction was further emphasized by the comma before “or.” Thus, the instructions improperly allowed the jury to convict Spaccia based on her status as an officer of Bell, without finding she was a person charged with financial responsibility. Where, as here, the jury was presented with an invalid legal theory, reversal is generally required unless it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper legal theory. Because the court could not determine whether the jury relied on solely on Spaccia’s status as an officer of Bell in convicting her of misappropriation, the error required reversal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B256046.PDF