in the court of appeal of the state of california third … · case no. c081603 . in the court of...
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Case No. C081603 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Petitioner,
v.
SUPERIOR COURT OF EL DORADO COUNTY; HONORABLE JAMES R. WAGONER,
Respondents,
SOUTH LAKE TAHOE POLICE OFFICERS’ ASSOCIATION; SOUTH LAKE TAHOE POLICE SUPRVISORS’ ASSOCIATION,
Real Party in Interest.
CITY OF SOUTH LAKE TAHOE; CHIEF OF POLICE BRIAN UHLER Real Party in Interest.
El Dorado County Superior Court, Case No. P16CRF0064,
The Honorable James R. Wagoner, Department 1, (530) 621-6426
REAL PARTIES IN INTEREST SOUTH LAKE TAHOE POLICE OFFICERS’ ASSOCIATION AND SOUTH LAKE TAHOE POLICE SUPRVISORS’ ASSOCIATION’S PRELIMINARY OPPOSITION
TO PETITION FOR WRIT OF MANDATE
JUDITH A. ODBERT (SBN 131261) JOSHUA A. OLANDER (SBN 249292)
TASHAYLA D. BILLINGTON (SBN 307050) MASTAGNI HOLSTEDT, A Professional Corporation
1912 I Street, Sacramento, California 95811 Tel: (916) 446-4692 Fax: (916) 447-4614
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Attorneys for Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS’ ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS’ ASSOCIATION
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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 8.208
The following entities or persons have either (1) an ownership interest
of 10 percent or more in the party or parties filing this certificate or (2) a
financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves:
None known at this time.
April 1, 2016
MASTAGNI HOLSTEDT, APC
J!IDITH A. ODBERT JOSHUA A. OLANDER 'I'ASHAYLA D. BILLINGTON Attorneys for Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS' ASSOCIATION
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TABLE OF CONTENTS
I. INTRODUCTION.................................................................................... 8 II. PROCEDURAL HISTORY .................................................................. 11
A. AN OFFICER INVOLVED SHOOTING OCCURRED ON JUNE 15, 2015. ................................................................................................... 12 B. PETITIONER INFORMED SLTPOA AND SLTPSA ATTORNEYS THAT HE WOULD INTENTIONALLY DELAY IN CONVENING A GRAND JURY IN ORDER TO CHALLENGE THE CONSTITUTIONALITY OF SB 227. .................................................... 12 C. MOTIONS TO DISCHARGE THE GRAND JURY AND QUASH SUBPOENAS FOR SLTPOA AND SLTPSA MEMBERS WERE GRANTED. .............................................................................................. 13 D. PETITIONER FILED A DEFECTIVE PETITION FOR WRIT OF MANDATE. ............................................................................................. 14
III. PRELIMINARY OPPOSITION .......................................................... 14 IV. STANDARD OF REVIEW ................................................................. 16 V. ARGUMENT ......................................................................................... 16
A. THE WRIT PETITION SHOULD BE DENIED BECAUSE IT ASKS THE COURT TO VACATE THE SUPERIOR COURT’S ORDER AND CONVENE A GRAND JURY IN VIOLATION OF THE LAW. ........................................................................................................ 16
1. Penal Code Section 917(b) Prohibits the District Attorney from Convening a Grand Jury To Investigate A Peace Officer’s Use of Force Resulting in Death. ............................................................................... 16 2. Senate Bill 227 is Presumptively Constitutional and the Legislature May Regulate Matters of Statewide Concern. ...................................... 17 a. SB 227 is Presumptively Constitutional......................................... 17 b. The Legislature May Regulate Matters of Statewide Concern ....... 19 3. Petitioner is Improperly Seeking Mandamus Relief. ..................... 21 a. Plain, Speedy, and Adequate Alternative Remedies Exist. ............ 22 b. Petitioner has Failed to Allege the Superior Court Had a
Ministerial Duty or that Petitioner Had Beneficial Right to the
Performance of the Duty. ...................................................................... 23 B. THE WRIT PETITION SHOULD BE DENIED FOR PROCEDURAL DEFECTS ..................................................................... 24
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1. The Writ Petition Improperly Fails to Include the Supporting Documents. ........................................................................................... 24 2. Petitioner Failed to Request Judicial Notice Pursuant to Rule 8.252 and Raises a New Arguments for the First Time on Appeal. ............... 24
VI. CONCLUSION…………...………………………………………….26
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TABLE OF AUTHORITIES
STATUTES Government Code section 1299.3(e) ..................................................... 11, 12 Government Code section 3300 .................................................................. 10 Government Code section 3500 .................................................................. 10 Penal Code section 830.1 ............................................................................ 16 Penal Code section 917(b) ................................................................ in passim
STATE CASES Babb v. Superior Court (1971) 3 Cal.3d 841 ............................................................................................. 16 Crawford v. Marion County Election Bd. (2008) 128 S.Ct. 1610 .......................................................................................... 18 Fitts v. Superior Court (1936) 6 Cal.2d 230 ............................................................................................. 19 Foundation for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1354 .............................................................................. 17 Friedland v. Superior Court in and for Sacramento County (1945) 67 Cal.App.2d 619 ................................................................................... 21 Gonzales v. County of Los Angeles (2004) 122 Cal.App.4th 1124 .............................................................................. 22 Maral v. City of Live Oak (2013) 221 Cal.App.4th 975 ................................................................................ 26 Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685 ............................................................................................. 19 Newton v. Clemons (2003) 110 Cal.App.4th 1 .................................................................................... 25 O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568 ................................................................................ 16 People v. Picklesimer (2010) 48 Cal.4th 330 .......................................................................................... 23 People v. Rodriguez (1998) 66 Cal.App.4th 157 .................................................................................. 18 People v. Superior Court (2013) 215 Cal.App.4th 1279 .............................................................................. 21 Robbins v. Superior Court (1985) 38 Cal.3d 199 ........................................................................................... 16 Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660 ................................................................................ 18 State Farm etc. Ins. Co v. Superior Court (1956) 47 Cal.2d 428 ........................................................................................... 16
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Taliaferro v. Locke (1960) 182 Cal.App.2d 752 ................................................................................. 23 Thomas v. Superior Court (1935) 4 Cal.App.2d 356 ..................................................................................... 21 Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765 ............................................................................................ 17
RULES California Rules of Court, rule 8.120 .......................................................... 24 California Rules of Court, rule 8.122 .......................................................... 24 California Rules of Court, rule 8.252 .................................................... 24, 25
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I.
INTRODUCTION
The Petition for Writ of Mandate by Petitioner (hereinafter, “Writ
Petition”), The People of the State of California (hereinafter, “People”),
should be denied because it asks this Court to order the Superior Court of El
Dorado County (hereinafter, “Superior Court”) to violate the law. Penal Code
section 917(b) (hereinafter, “917(b)”), amended by Senate Bill 227
(hereinafter, “SB 227”), prohibits district attorneys from convening a grand
jury to inquire into an offense that involves a shooting or use of force by a
peace officer resulting in death. The People violated a presumptively
constitutional statute, asserting that the statute is unconstitutional. Having
failed to obtain declaratory relief in the Superior Court, Petitioner now turns
to this Court for relief by writ procedure.
The Writ Petition is defective as Petitioner has failed to allege the
Superior Court had a ministerial duty to act, and failed to do so, or did so in
direct contravention of the law. The Superior Court did not err or abuse its
discretion in discharging the Grand Jury and quashing unlawful subpoenas
associated with the District Attorney’s convening of the Grand Jury in
violation of 917(b). Petitioner incorrectly suggests the Superior Court should
have allowed Petitioner to continue his actions despite the fact that they were
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in direct opposition to the law. Furthermore, Petitioner failed to provide the
complete Superior Court record for this Court’s consideration.
Petitioner argues that the enactment of SB 227 was unconstitutional,
claiming the Legislature cannot substantively alter the grand jury, but can
only legislate as to procedure. While Real Parties in Interest South Lake
Tahoe Police Officers’ Association (hereinafter, “SLTPOA”) and South
Lake Tahoe Police Supervisors’ Association (hereinafter, “SLTPSA”) do not
agree with Petitioner that the Legislature lacks authority to substantively alter
the grand jury, SB 227’s amendments are procedural and designed to address
an issue of statewide concern. The Legislature is empowered with the
authority to regulate issues of statewide concern, and Petitioner agrees the
Legislature is authorized to enact laws governing procedure. The
amendments do not diminish any of the grand jury functions and, therefore,
are procedural. Petitioner’s hope that 917(b) be declared unconstitutional
ignores the more circumspect and proper alternative of severing improper
language from otherwise constitutional statutes. Petitioner, however, has not
requested declaratory relief.
A statute is presumptively constitutional and Petitioner did not allege
the Superior Court abused its discretion in finding 917(b) constitutional.
917(b) does not violate the California Constitution, Article 1 Section 8.
917(b) merely limits a district attorney’s ability to convene a grand jury and
place before it an officer involved use of force that resulted in death, without
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limiting the authority of grand jury members themselves from initiating such
investigations. The procedural amendment to 917(b) does not make a
substantive change to the jurisdiction of the grand jury. Rather, the statute
preserves the jurisdiction of the grand jury by allowing a member to inquire
into such events and investigate the actions of law enforcement. The
amendment is arguably procedural in nature as it merely limits the ability of
a district attorney to utilize the grand jury for such purposes. Even assuming,
for the sake of argument, that the amendment is in fact a substantive change
to grand jury jurisdiction, absent limitation by the California Constitution the
Legislature is still vested with the authority to limit the power of a grand jury.
Petitioner’s Writ Petition requests this Court set aside the Superior
Court’s order granting a Motion to Discharge the Grand Jury convened to
investigate the officer involved shooting of June 15, 2015, and granting the
Motions to Quash subpoenas issued to Joshua Klinge, John King, Eli Clark,
Jason Cheney, Jeffrey Roberson and Brian Williams. Petitioner challenges
the Superior Court’s finding that 917(b) is constitutional, which caused the
grand jury to be discharged and the subpoenas quashed related to its unlawful
convention.
SLTPOA and SLTPSA urge the Court to deny the Writ Petition for
the following reasons: (1) Petitioner failed to allege or demonstrate the
Superior Court erred and abused its discretion by discharging the Grand Jury;
(2) Petitioner failed to allege or demonstrate that the Superior Court erred
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and abused its discretion by quashing the subpoenas; (3) Penal Code section
917(b) is facially constitutional; and (4) the Writ Petition suffers from
fundamental procedural defects. Real Parties in Interest hereby respectfully
request this Court deny Petitioner’s Writ Petition based on its substantive and
procedural defects.
II.
PROCEDURAL HISTORY
Real Party in Interest SLTPOA is the exclusive representative of City
of South Lake Tahoe employees within the job classifications of “Law
Enforcement Non-Supervisory”. Real Party in Interest SLTPSA is the
exclusive representative of the City of South Lake Tahoe employees within
the job classification of “Law Enforcement Supervisory”. SLTPOA and
SLTPSA are authorized to represent their members regarding wages, hours
and other terms and conditions of employment pursuant to the Meyers-
Milias-Brown Act (Gov. Code §§ 3500, et seq.)1 SLTPOA and SLTPSA’s
members are peace officers within the meaning of Government Code section
1299.3(e) and are entitled to all the rights and protections afforded under the
1 Government Code section 1299.3(e) provides: ‘Law Enforcement Officer' means any person who is a peace officer, as defined in section 830.1 of, subdivision (b) and (d) of section 830.31 of, subdivision (a), (b), and (c) of section 830.32 of, subdivisions (a), (b), and (d) of section 830.33 of, subdivisions (a) and (b) of section 830.35 of, subdivision (a) of section 830.5 of, and subdivision (a) of section 830.55 of, the Penal Code, without respect to the rank, job title, or job assignment of that person.
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Public Safety Officers Procedural Bill of Rights Act (Gov. Code §§ 3300, et
seq.)
Petitioner, The People of State of California, is the District Attorney
of El Dorado County.
A. AN OFFICER INVOLVED SHOOTING OCCURRED ON JUNE 15, 2015.
On June 15, 2015 an officer involved shooting occurred in South Lake
Tahoe involving members of SLTPOA. (Motion to Discharge Grand Jury, at
p. 2, Exh. 1 hereto.) At the time of the incident, 917(b) allowed the District
Attorney to convene a grand jury for the purpose of investigating officer
involved shootings resulting in death. The suspect who was shot expired.
The District Attorney, Vern Pierson, arrived at the scene and participated in
the investigation. The investigation concluded in 2015.
B. PETITIONER INFORMED SLTPOA AND SLTPSA ATTORNEYS THAT HE WOULD INTENTIONALLY DELAY IN CONVENING A GRAND JURY IN ORDER TO CHALLENGE THE CONSTITUTIONALITY OF SB 227.
Months after the shooting investigation, Assistant District Attorney
William Clark came to the law offices of Mastagni Holstedt on December
10, 2015 to inform counsel for SLTPOA and SLTPSA that Petitioner
intended to challenge the constitutionality of SB 227 by convening a grand
jury after January 1, 2016 when the amendments took effect. He indicated
that he already had the dates scheduled for the grand jury, beginning on
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January 28, 2016, and he would email the subpoenas the next day. The
subpoena’s for SLTPOA members were provided on December 11, 2015.
C. MOTIONS TO DISCHARGE THE GRAND JURY AND QUASH SUBPOENAS FOR SLTPOA AND SLTPSA MEMBERS WERE GRANTED.
On February 1, 2016, Petitioner issued a second group of grand jury
subpoenas. These subpoenas included members of SLTPOA and SLTPSA.
On February 4, 2016, SLTPOA and SLTPSA filed motions to discharge the
grand jury and to quash the subpoenas issued by the Petitioner. (Motion to
Quash Subpoena for Joshua Klinge, Exh. 2 hereto.)2 On February 12, 2016,
Chief Uhler filed a motion to quash the subpoena that was served upon him
for presentment at the grand jury. (Notice of Joinder by Brian Uhler, Exh. 3
hereto.) The People filed an untimely opposition on February 16, 2016, not
February 12, 2016 as asserted in their Petition. (People’s Opposition to
Motions to Quash Subpoenas and Motion to Discharge Grand Jury, Exh. 4
hereto.) February 12 and 15, 2016 were in fact court holidays. SLTPOA and
SLTPSA filed a response on February 18, 2016. (Reply to People’s
Opposition, Exh. 5 hereto.) On February 19, 2016, the Honorable Judge
James R. Wagoner ruled in favor of Real Parties in Interest, granting the
motions to discharge the Grand Jury and to quash the subpoenas.
2 Separate Motions to Quash were filed for each of the six officers subpoenaed. The Motion to Quash attached here is for SLTPOA member Joshua Klinge. It is nearly identical to the Motions to Quash filed on behalf of the other officers.
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D. PETITIONER FILED A DEFECTIVE PETITION FOR WRIT OF MANDATE.
On March 22, 2015, Petitioner filed what appears to be a Verified
Petition for Writ of Mandate. (Writ Petition, pp. 41-46.) The Writ Petition,
however, is devoid of the necessary information dictating the authority under
the Code of Civil Procedure. Additionally, the Petitioner failed to include the
complete record of the Superior Court proceedings.
SLTPOA and SLTPSA respectfully submit this Preliminary
Opposition to the People’s Writ Petition pursuant California Rules of Court,
rule 8.487(a).
III.
PRELIMINARY OPPOSITION
At issue is whether the Superior Court of El Dorado County abused
its discretion by discharging the Grand Jury and quashing the related
subpoenas based on the Superior Court’s finding that the Grand Jury
investigation was in violation of 917(b). Petitioner purposefully convened
the El Dorado Grand Jury after SB 227 became effective on January 1, 2016.
Penal Code section 917, subdivision (b) provides:
Except as provided in Section 918, the grand jury shall not inquire into an offense that involves a shooting or use of excessive force by a peace officers described in Section 830.1, subdivision (a) of Section 830.2 or Section 830.39, that led to the death of a person being detained or
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arrested by the peace officer pursuant to Section 836.
After Petitioner convened the grand jury in violation of 917(b),
motions were filed to discharge the grand jury and quash subpoenas issued
by Petitioner. (Exhs. 1 and 2.) On February 19, 2016, The Superior Court for
the County of El Dorado, Honorable James R. Wagoner, granted the motions
of Real Parties in Interest SLTPOA and SLTPSA to discharge the grand jury
and quash subpoenas issued. (Minute Order, p. 2, Exh. 6 hereto.)
Based on the Parties’ motions, the Superior Court found the
Legislature had the power to enact SB 227 and that the grand jury had been
convened in violation of the law. (Reporter’s Transcript (“RT”), Exh. 3 to
Writ Petition, 4:10-12; 15-17.) The Superior Court ruled that under SB 227
and amended 917(b), the Grand Jury did not have the jurisdiction to hear the
case presented by the district attorney. (RT 10:25-11:5.) The Superior Court
found it was necessary to quash the subpoenas for the same reasons. (RT 4:
15-17.) As the Honorable James R. Wagoner stated, he is “charged by ... [his]
oath to enforce the laws of the state of California until they are proven to be
otherwise” and that while he recognized his “authority to declare [SB 227]
unconstitutional,” that was something he “would be loathe to do when it has
gone through this vetting process” through the Legislature. (RT 6:28-7:5.)
Petitioner now files this Writ Petition seeking to vacate the Superior
Court’s order quashing the grand jury subpoenas and terminating the grand
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jury investigation.
IV.
STANDARD OF REVIEW
In an original mandamus proceeding, this Court reviews the trial
court’s ruling for abuse of discretion. (State Farm etc. Ins. Co v. Superior
Court (1956) 47 Cal.2d 428, 432.) According to the Supreme Court,
“[a]lthough mandamus does not generally lie to control the exercise of
judicial discretion, the writ will issue [only] ‘where, under the facts, that
discretion can be exercised in only one way.’” (Robbins v. Superior Court
(1985) 38 Cal.3d 199, 205 quoting Babb v. Superior Court (1971) 3 Cal.3d
841, 851.) Where there is no abuse of discretion, the reviewing court must
dismiss the writ petition. (See O.W.L. Foundation v. City of Rohnert Park
(2008) 168 Cal.App.4th 568, 587.)
V.
ARGUMENT
A. THE WRIT PETITION SHOULD BE DENIED BECAUSE IT ASKS THE COURT TO VACATE THE SUPERIOR COURT’S ORDER AND CONVENE A GRAND JURY IN VIOLATION OF THE LAW.
1. Penal Code Section 917(b) Prohibits the District Attorney from Convening a Grand Jury to Investigate a Peace Officer’s Use of Force Resulting in Death.
Effective January 1, 2016, the grand jury no longer has jurisdiction to
investigate a peace officer use of force that results in death. Nevertheless,
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Assistant District Attorney William Clark caused a grand jury to be convened
for the purpose of investigating a shooting by a peace officer, as described in
Penal Code section 830.1, that led to a death. Thus, convening the Grand Jury
was in direct violation of the law.
On February 19, 2016, the Superior Court ordered the Grand Jury be
discharged and the subpoenas relating to the proceeding be quashed. Now,
Petitioner requests this Court vacate that order and cause the El Dorado
County Grand Jury to inquire into an offense the Legislature has expressly
prohibited.
Mandamus should not issue because the Superior Court did not abuse
its discretion by upholding the law.
2. Senate Bill 227 is Presumptively Constitutional and the Legislature May Regulate Matters of Statewide Concern.
a. SB 227 is Presumptively Constitutional.
When weighing a challenge to duly enacted legislation, courts must
“presume the constitutionality of the legislative act, resolving all doubts in
favor of the act, and must uphold the act unless a conflict with a provision of
the state or federal Constitution is clear and unquestionable.” (Foundation
for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th
1354, 1356.) In examining and scrutinizing state enacted legislation, “[a]ll
presumptions and intendments favor the validity of the statute ... Statutes
must be upheld unless their unconstitutionality clearly, positively, and
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unmistakably appears.” (Voters for Responsible Retirement v. Board of
Supervisors (1994) 8 Cal.4th 765, 780.) “As a general rule, a statute is
‘facially unconstitutional’ if it conflicts so directly with a constitutional
provision that the statute is completely invalid and unenforceable in all
circumstances.” (People v. Rodriguez (1998) 66 Cal.App.4th 157, 166.)
Facial invalidation is justified only where the statute could be validly applied
under no circumstances.” (Sanchez v. City of Modesto (2006) 145
Cal.App.4th 660, 689.) Lastly, “[a] facial challenge must fail where the
statute has ‘plainly legitimate sweep.’” (Crawford v. Marion County Election
Bd. (2008) 128 S.Ct. 1610, 1623 [citations omitted].)
The Superior Court did not abuse its discretion in finding 917(b)
constitutional. The Superior Court’s analysis succinctly establishes that
917(b) does not substantively interfere with the grand jury powers, and the
Legislature can limit and direct procedurally what can be done through the
grand jury process. (RT 4:9-12; 7:6-9.)
Even if, as Petitioner claims, the Legislature cannot substantively
change the grand jury’s functions, SB 227 ensured the constitutionality of
the change by leaving Penal Code section 918 intact. Penal Code section 918
allows a grand jury to inquire into an offense “[i]f a member of the grand
jury knows, or has reason to believe, that a public offense, triable within the
county, has been committed ....” Thus, SB 227 did not remove an entire class
of crimes from the grand jury’s purview.
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b. The Legislature May Regulate Matters of Statewide Concern
The Legislature is empowered with broad authority to enact statutes.
(See Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691 [“If
there is any doubt as to the Legislature’s power to act in any given case, the
doubt should be resolved in favor of the Legislature’s action. Such
restrictions and limitations [imposed by the Constitution] are to be construed
strictly, and are not to be extended to include matters not covered by the
language used.”].) “[Courts] do not look to the Constitution to determine
whether the Legislature is authorized to do an act, but only to see if it is
prohibited.” (Fitts v. Superior Court (1936) 6 Cal.2d 230, 234.)
The California Constitution does not limit the Legislature’s ability to
enact statutes proscribing the manner in which certain classes of crimes can
be brought into the judicial system.
The primary purpose behind the enactment of SB 227 is to promote
the harmonious relations between the public and the government. The statute
promotes transparency in investigations into officer involved use of force
cases resulting in death. To achieve this goal, the Legislature responded to
public concern by taking away the purported “veil of secrecy”, thus allowing
public scrutiny as to the actions of law enforcement and the investigation of
these cases.
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The statute promotes better relations between the public and
government as the public is made aware of the findings and reasons therefore.
A preliminary hearing, which is unavailable in the indictment process, is
open to the public and provides the media and citizens full access to the case
as presented by the district attorney. Prior to the enactment of 917(b), a
district attorney was able to produce the investigation in secrecy and
potentially influence the grand jury by the manner and the type of evidence
produced in secrecy. Promoting harmonious relations between the public and
government is a matter of statewide concern. The consequences of a
breakdown in such relations are evident from the protests seen across the
state and nation. Public trust of the government and law enforcement will
increase and assist in making communities within the state safer for citizens
and law enforcement employees.
Even assuming, for the sake of argument, that Petitioner is correct that
the Legislature cannot substantively change the grand jury, SB 227 did not
result in a substantive change to the grand jury. SB 227 was a procedural
change made by the Legislature in an effort to resolve issues of statewide
concern. The amended version of 917(b) declares the process required to
bring law enforcement use of force cases resulting in death into the justice
system.
The Writ Petition should be denied because the Superior Court did not
err or abuse its discretion when it found 917(b) constitutional and discharged
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the grand jury that was convened to hear the officer involved shooting of
June 15, 2015.
3. Petitioner is Improperly Seeking Mandamus Relief.
Mandamus may not be employed to compel a court to decide in any
particular way, and only when it refuses to accept jurisdiction or when it has
wrongfully divested itself of jurisdiction is mandate a correct remedy, and
then only to compel the further duty to act, and not to coerce as to manner or
result of action. (Friedland v. Superior Court in and for Sacramento County
(1945) 67 Cal.App.2d 619, 624 citing Thomas v. Superior Court (1935) 4
Cal.App.2d 356.) Petitioner’s Writ Petition seeks exactly what they are
prohibited from seeking to compel – a different result. Petitioner seeks to
have this Court overturn the Superior Court’s decision and force it to decide
in Petitioner’s favor.
To compel public agencies to perform acts required by law with a writ
of mandate, a petitioner must demonstrate (1) no plain, speedy, and adequate
alternative remedy exists, (2) a clear, present, ministerial duty on the part of
the respondent, and (3) a correlative clear, present, and beneficial right in the
petitioner to the performance of the duty. (People v. Superior Court (2013)
215 Cal.App.4th 1279, 1295.) Petitioner has failed to meet the required
criteria.
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a. Plain, Speedy, and Adequate Alternative Remedies Exist.
Petitioner has multiple adequate alternative remedies at their disposal
to accomplish their objective. On June 15, 2015, Petitioner began their
investigation into the shooting that occurred on the same date. The
investigation concluded in 2015. If the District Attorney believed probable
cause existed to file charges related to the shooting, they had every
opportunity to do so. Even now, if Petitioner believes probable cause for an
arrest exists, the Petitioner may file a complaint in superior court. Petitioner
is not precluded from doing so.
Rather than filing a complaint, on December 10, 2015, ADA Clark
informed SLTPOA and SLTPSA attorneys that he was purposefully
convening the grand jury so that he could challenge the constitutionality of
917(b). Petitioner made a calculated, intentional decision to convene the
grand jury with full knowledge that he would be prohibited from bringing
officer involved shootings resulting in death in front of a grand jury after
January 1, 2016. Petitioner had more than adequate time to convene a grand
jury prior to January 1, 2016. Instead, Petitioner chose to use a human being
as a puppet in his own show, for his own personal and selfish reasons.
Petitioner created his own issues to bring before this Court and his
manipulation of the system should not be rewarded.
Further, if Petitioner wishes to challenge the constitutionality of the
statute at issue, they may do so through a suit for declaratory relief or seek
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an injunction. Petitioner has failed to seek the adequate alternative remedies
available, and has failed to allege other adequate remedies do not exist.
b. Petitioner has Failed to Allege the Superior Court Had a
Ministerial Duty or that Petitioner Had Beneficial Right to
the Performance of the Duty.
In addition, Petitioner failed to demonstrate Respondent has a clear,
present, ministerial duty. Only where a court has refused to perform a clear
duty, unmixed with discretionary power or the exercise of judgment, will
mandamus issue against the Court. (Taliaferro v. Locke (1960) 182
Cal.App.2d 752, 755.) A ministerial duty is an obligation to perform a
specific act in a manner prescribed by law whenever a given state of facts
exists, without regard to any personal judgment as to the propriety of the act.
[Citation].” (People v. Picklesimer (2010) 48 Cal.4th 330, 338-39.) Here, the
Superior Court exercised its discretion and authority in deciding SB 227 was
constitutional and within the Legislature’s power to enact. Petitioner has not
alleged otherwise.
Finally, Petitioner has not demonstrated it has a beneficial right to
have the superior court convene a grand jury on its behalf. Because Petitioner
has failed to show mandate is an appropriate remedy, Petitioner’s Writ
Petition should be denied.
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B. THE WRIT PETITION SHOULD BE DENIED FOR PROCEDURAL DEFECTS
1. The Writ Petition Improperly Fails to Include the Supporting Documents.
Petitioner violated California Rules of Court, rules 8.120 and 8.122
by inappropriately excluding the record of the case in Superior Court.
Petitioner seeks to mislead the Court by refusing to acknowledge that his
opposition in the Superior Court was untimely, and that SLTPOA and
SLTPSA nevertheless filed a response. According to Petitioner’s Writ
Petition, the responsive filing does not exist. The Rules of Court require that
Petitioner serve and file the record of the trial court proceedings, including
any documents filed or lodged in the case in Superior Court. (Cal. Rules of
Court, rule 8.122(b)(3).) Petitioner has failed to produce the documents filed
in the Superior Court.
By omitting all Superior Court filings, Petitioner has submitted an
incomplete trial court record, thus rendering the Writ Petition procedurally
defective. As Petitioner’s Writ Petition is procedurally defective, it should be
denied.
2. Petitioner Failed to Request Judicial Notice Pursuant to Rule 8.252 and Raises a New Arguments for the First Time on Appeal.
Petitioner has submitted five items outside of the Superior Court
record, including SB 227 Senate Committee on Public Safety – April 20,
2015 (Writ Petition, Exh. 4); SB 227 Senate Floor Analyses – May 4, 2015
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(Writ Petition, Exh. 5); Senate Floor Analyses – May 6, 2015 (Writ Petition,
Exh. 6); SB 227 Assembly Floor Analysis – June 15 2015 (Writ Petition,
Exh. 7); SB 227 Assembly Floor Analysis – June 17, 2015 (Writ Petition,
Exh. 8). However, Petitioner failed to submit these documents in accordance
with the California Rules of Court.
Rule 8.252 of the California Rules of Court requires a party requesting
judicial notice to serve and file a separate motion with a proposed order. The
motion must state whether the matter to be noticed was presented to the trial
court and, if so, whether judicial notice was taken by that court. In violation
of rule 8.252, Petitioner has failed to submit documents outside the Superior
Court record in a separate motion as required.
Petitioner argues for the first time on appeal that “section 917
unconstitutionally abrogates the Executive’s Constitutional Prerogative in
Investigating and charging felonies through Grand Jury indictment.” (Writ
Petition, pp. 41-46.) A basic tenant of appellate procedure is that arguments
and facts not raised in the lower court are deemed waived on appeal. “‘[I]t is
fundamental that a reviewing court will ordinarily not consider claims made
for the first time on appeal which could have been but were not presented to
the trial court.’ ‘[W]e ignore arguments, authority, and facts not presented
and litigated in the trial court. Generally, issues raised for the first time on
appeal which were not litigated in the trial court are waived....’ ” (Gonzales
v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 citing Newton
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v. Clemons (2003) 110 Ca1.App.4th 1, 11, 1 Cal.Rptr.3d 90, fn. omitted.)
Likewise Petitioner fails to explain why the legislative history is necessary
to this Court's decision. (See Moral v. City of Live Oak (2013) 221
Cal.App.4th 975, 984 fn. 2 [refusing to take judicial notice of information
that was not necessary to resolve the issues on appeal].) As Petitioner failed
to raise this issue in the Superior Court, it should be deemed waived and not
be considered on appeal.
IV.
CONCLUSION
Petitioner has failed to show the Superior Court abused its discretion
in discharging the grand jury and quashing the related subpoenas. Petitioner
has also failed to allege it has no adequate remedy at law and the Writ Petition
is otherwise procedurally defective. As such, Real Parties in Interest request
that this Court summarily deny the People's Writ Petition.
Respectfully submitted,
April 1, 2016
MASTAGNI HOLSTEDT, APC
V( UD TH A. ODB
AOSHUA A. OLANDER il-ASHAYLA D. BILLINGTON Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS' ASSOCIATION
26
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CERTIFICATE OF WORD COUNT
Pursuant to Rule 8.204(c)(1) of the California Rules of Court, I
certify that this brief consists of 5,472 words, as counted by the computer
program used to generate the document.
MASTAGNI HOLSTEDT, APC
I)
.TiipITH A. ODBERT
.t9SHUA A. OLANDER TASHAYLA D. BILLINGTON Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS' ASSOCIATION
27
Dates: April 1, 2016
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PROOF OF SERVICE
I am a citizen of the United States and a resident of the County of
Sacramento. I am over the age of eighteen years and not a party to the within
above-entitled action; my business address is 1912 I Street, Sacramento,
California 95811.
On April 1, 2016 I served the within:
REAL PARTIES IN INTEREST SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION AND SOUTH LAKE TAHOE POLICE SUPRVISORS' ASSOCIATION'S PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE
Attorneys for People of the State of Attorneys for City of South Lake California Tahoe William Clark Thomas T. Watson Vern Pierson City of South Lake Tahoe El Dorado County District 1901 Airport Road, Suite 300 Attorney South Lake Tahoe, CA 96150 515 Main Street Placerville, CA 95667
Attorneys for California District Attorneys for Chief of Police Brian Attorneys Association Uhler Mark Zahner Bruce D. Praet 921 11th St Ste 300 Ferguson, Praet & Sherman Sacramento, CA 95814 1631 East 18th Street
Santa Ana, CA 92701
BY ELECTRONIC SERVICE: I certify that all participants in the case are registered TRUEFILING users and that service will be provided by TRUEFILING to parties' attorneys of record, pursuant to Local Rule 5 and on the Supreme Court pursuant to rule 8.212(c)(2).
And;
28
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R. BARBIERI P
Superior Court of El Dorado Honorable James R. Wagoner 495 Main Street, Dept. 1 Placerville, CA 95667
BY U.S. MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing following ordinary business practices. I am "readily familiar" with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the United States Mail today, with postage thereon fully prepaid at Sacramento, California in the ordinary course of business.
I certify (or declare) under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on April 1, 20 cramento, California.
Paralegal
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Exhibit 1
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Exhibit 2
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Exhibit 3
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Exhibit 4
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Exhibit 5
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Exhibit 6
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Certificate of Interested PartiesTable of ContentsTable of AuthoritiesI. INTRODUCTIONII. PROCEDURAL HISTORYA. AN OFFICER INVOLVED SHOOTING OCCURRED ON JUNE 15, 2015.B. PETITIONER INFORMED SLTPOA AND SLTPSA ATTORNEYS THAT HE WOULD INTENTIONALLY DELAY IN CONVENING A GRAND JURY IN ORDER TO CHALLENGE THE CONSTITUTIONALITY OF SB 227.C. MOTIONS TO DISCHARGE THE GRAND JURY AND QUASH SUBPOENAS FOR SLTPOA AND SLTPSA MEMBERS WERE GRANTED.D. PETITIONER FILED A DEFECTIVE PETITION FOR WRIT OF MANDATE.
III. PRELIMINARY OPPOSITIONIV. STANDARD OF REVIEWV. ARGUMENTA. THE WRIT PETITION SHOULD BE DENIED BECAUSE IT ASKS THE COURT TO VACATE THE SUPERIOR COURT’S ORDER AND CONVENE A GRAND JURY IN VIOLATION OF THE LAW.1. Penal Code Section 917(b) Prohibits the District Attorney from Convening a Grand Jury to Investigate a Peace Officer’s Use of Force Resulting in Death.2. Senate Bill 227 is Presumptively Constitutional and the Legislature May Regulate Matters of Statewide Concern.a. SB 227 is Presumptively Constitutional.b. The Legislature May Regulate Matters of Statewide
3. Petitioner is Improperly Seeking Mandamus Relief.a. Plain, Speedy, and Adequate Alternative Remedies Exist.b. Petitioner has Failed to Allege the Superior Court Had a Ministerial Duty or that Petitioner Had Beneficial Right to the Performance of the Duty.
B. THE WRIT PETITION SHOULD BE DENIED FOR PROCEDURAL DEFECTS.1. The Writ Petition Improperly Fails to Include the Supporting Documents.2. Petitioner Failed to Request Judicial Notice Pursuant to Rule 8.252 and Raises a New Arguments for the First Time on Appeal.
VI. CONCLUSIONCERTIFICATE OF WORD COUNTPROOF OF SERVICEEXHIBIT 1EXHIBIT 2Exhibit AExhibit BExhibit CExhibit DExhibit EExhibit FExhibit GExhibit HExhibit I
EXHIBIT 3EXHIBIT 4EXHIBIT 5EXHIBIT 6