STEEN v. APPELLATE DIVISION

Petitioner’s Reply to Informal Response

Cal.August 27, 2009

3174773 IN THE SUPREME COURT OF THE STATE OFoe rILEL Pit oe FANG PE i Ba a ead Frederick kK. Onnchn ClarkJEWERELENE STEEN, S174773 Depuly Petitioner, V. (2d Dist.No. B217263: App.Div.No. BR046020:APPELLATE DIVISION OF THE LOS Trial Ct.No. 6200307)ANGELES COUNTY SUPERIOR COURT Respondent, PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. EP Y TO PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE From the Appellate Division, Los Angeles County Superior Court Hon. Patti Jo McKay, Presiding Judge MICHAELP. JUDGE, PUBLIC DEFENDER OF LOS ANGELES COUNTY,CALIFORNIA llya Alekseyeff, John Hamilton Scott, _ (State Bar No. 58258) Deputy Public Defenders Appellate Branch _ 320 West Temple Street, Room 590 Los Angeles, California 90012 Telephone: (213) 974-3050 Attorneys for Petitioner 9}NOISNIONOOD OL-SLASVOSIHLNIA5I1SYAYVNIGHOVYLXS INVYSOLALIMOHLANVYSVHLYNODSIHLAl SL-LbGOlysdSNOILVLINIT40 ALALVLSAHLNIHLIMGSY¥YNDD0ASVOSIHLNI Gad«.LNIVIdWOD,SHLAOWAOYddYGaLV14a8 YISHLLVHLMOHSOLG3STIV4SAVH31dOsddSHIiii LbL-OL GS9YOANS3dLONNVOGNVTVNOILNLILSNOONN SILl‘SNONSIGNYLONSILIAl -ATIVNOILALILSNOODGALAYdYSLNI34GINOHS ONVSNONDIEWNVSIb°6S9NOILOASAGOOWNddii 6-2YOLNOASOYdDITENd AHLAdNOILVZIYOHLNVGNVDONINSSAYOSYOlYd LNAS8VSWYS1IOLYNOSDAdGALVILINI3dOL SSAOYVHOTWNIATYOLINAdOLTWNOILNLILSNOO SILILVHLMOHSOLG3A1IVASAVH31dOAdSHL INAWNSYV LALVONVW40LIYM4O4SNOILILSd XAGNITVOIdOL TABLE OF AUTHORITIES CITED Page Cases Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 14 Bellamy v. Appellate Division (1996) 50 Cal.App.4th 797 14 Dix v. Superior Court (1991) 53 Cal.3d 442 7 In re Panchot (1968) 70 Cal.2d 105 14 In re Zerbe (1964) 60 Cal.2d 666 14 People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193 2,3,4 People v. Smith (1975) 53 Cal.App.3d 655 5 People v. Viray (2005) 134 Cal.App.4th 1186 2,4,5 Rodriguez v. Solis (1991) 1 Cal.App.4th 495 6 State of California v. Superior Court (1974) 12 Cal.3d 237 6 Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402 14 United States v. Gray (9th Cir. 1989) 876 F.2d 1411 12 TABLE OF AUTHORITIES CITED (Cont.) Page Cases (Cont.) United States v. Martinez (10th Cir. 1989) 890 F.2d 1088 13 Statutes Penal Code § 803, subd. (d) 12 § 804, subd. (d) 12 § 959.1 10,16 § 1320, subd. (b) 9 Vehicle Code § 40508 11,13 United States Code 18 U.S.C. § 3290 13 Attorney General Opinions 63 Ops.Atty.Gen. 861 5 66 Ops.Atty.Gen. 256 12 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JEWERELENE STEEN, ) ) $174773 Petitioner, ) ) V. ) (2d Dist.No. B217263; ) App.Div.No. BRO46020; APPELLATEDIVISION OF THE LOS Trial Ct.No. 6200307) ANGELES COUNTY SUPERIOR COURT Respondent, PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. N e e e m e e e e ” e t g e t e e e e ” REPLY TO PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Petitioner Jewerelene Steen, by and through her attorney Michael P. Judge, Public Defender of Los Angeles County, hereby makesherreply to the Preliminary Opposition (hereinafter “Opp.")filed by the People. 7 Vin herprayer, petitioner asked that the Appellate Division be directed to recall its remittitur, if necessary. (Pet., pp. 9-10.) That remittitur was issued on August 25, 2009, and thus petitioner does pray that the Appellate Division be directed to recall that remittitur and to reverse thetrial court judgment. -{- ARGUMENT —_—————FHE—PEOPLE—-HAVE—FAILEB—FO—SHOW— CONSTITUTIONAL TO PERMIT CRIMINAL CHARGESTO BE INITIATED BYCOURT CLERKS ABSENT PRIOR SCREENING AND AUTHORIZATION BY THE PUBLIC PROSECUTOR Petitioner has demonstrated that due processis violated when criminal chargesarefiled absent the prior review and authorization of the public prosecutor, citing, inter alia, People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, and thatthefiling of charges by court clerks violates the constitutionally mandated separation of powers,citing, inter alia, People v. Viray (2005) 134 Cal.App.4th 1186. In responding to the due process issue, the People make the remarkable argumentthat “Pellegino does not standfor the proposition that prior approval is required.” (Opp., p. 14; emphasis original.) This is remarkable because the People actually quote one portion of Pellegrino which does require such prior approval: “By this holding we do not meanto imply that criminal complaints need take any different form than they presently do, but only thattheir filing must be approved, authorized or concurredin by the district attorney before they are effective in instituting criminal proceedings against an individual.” (Opp., p. 15, quoting Pellegino, supra, 27 Cal.App.3d at p. 206; emphasis added.) Of course, the People ignore even stronger language in Pellegrino: “Thus the theme which runs throughout the criminal procedurein this state is that all persons should be protected from having to defend against frivolous prosecutions and that one major safeguard against such prosecutions is the function of the district attorney in screening criminal casesprior instituting a prosecution.” (Id., 27 Cal.App.3d at pp. 205-206, emphasis added,footnote omitted.) -2. The People do not dispute the fact that there was no screening priorto the institution of charges against petitioner. The People claim only that require such screening. The People assert that all that Pellegino holdsis that a criminal proceeding, althoughinstituted by a person other than the authorized prosecutor, “cannot proceed until the defendant returns to court, at which time the prosecutor may review any additional facts, the defendant may raise any defenses, and the prosecutor can approve or object to the complaint.” (Opp., p. 16, emphasis original.) However, that is clearly not the holding of Pellegrino. The requirementof prior screening and approval is not a mere bar to proceeding upon a complaint which is otherwise proper. The clear ruling in Pellegrino is that complaints not instituted by the authorized prosecutor are ineffective to commencea criminal prosecution; they are, in the words of the Court of Appeal, “nullities.” (Id., 27 Cal.App.3d at p. 206.) Indeed, while the People facilely say that the prosecutor can “disapprove or object” to a complaint (Opp., p. 16), the People fail to thereafter discuss the legal effect of such a disapproval or objection. The People actually include the relevant quote from Pellegino, which demonstrates that the prosecution cannot unilaterally abandon a criminal prosecution, once instituted, in such a manner: “[T]he existence of a discretionary powerin the district attorney to control the institution of criminal proceedings is a necessary prerequisite to the constitutional validity of the requirementthat the district attorney seek court approval for abandoning a prosecution as required by sections 1385 and 1386 of the Penal Code.” (Opp., p. 15; quoting Pellegrino, 27 Cal.App.3d at p. 204.) The pointis that if criminal proceedings can actually beinstituted without the prosecutor’s screening and approval, 3. the prosecutor cannot thereafter terminate the prosecution simply by objectingtoit. would be violative not only of due process, but of the separation of powers, as recognizedin Pellegrino as well as People v. Viray (2005) 134 Cal.App.4th 1186, 1202-1203. *’) The only time that the prosecutor can abort a criminal proceedingis beforeit is instituted. Consequently, if the judiciary can institute criminal proceedings, and also control the termination of such proceedings,then the entirety of prosecution has been placed in the hands of the judiciary. However, such an unconstitutional procedure is not authorized in California, since the judiciary cannot institute criminal proceedings without violating the Constitution. Since thefiling of a complaint by somebody other than the prosecutoris a nullity, the prosecutoris not required to proceed with an action filed by a court clerk because no action has been lawfully commenced. Thatis the point of Pellegrino and Viray which the People seemingly fail to comprehend. Additionally, if the People are correct that court clerks can initiate criminal proceedings underthe authority of Penal Code section 959.1, there is nothing in that statute which requires a prosecutor to review a charge after it has beenfiled by a clerk. Even the People appearto recognizethis: “[A] prosecutionfora failure to appear cannot proceed until the defendant returns to court, at which time the 2 Curiously, the People cite Viray for the proposition that a complaint is merely an accusation necessary to secure a defendant's arrest. (Opp., pp. 12-13, fn. 5.) However, what Viray states is that while that may be true elsewhere,theruleis different in California, and that “. . . in this state, it [a complaint] commits the prosecutor to pursue a criminal conviction—a commitment from which only a court can grant relief.” (134 Cal.App.4th at p. 1205; emphasis original.) -4- prosecutor may review any additionalfacts . . . and the prosecutor can disapprove or object to the complaint.” (Opp., p. 16; emphasis added so, and petitioner is unaware of any California law which requires a prosecutor to engagein a review ofthe validity of criminal charges brought by a court clerk. Perhaps a defendant's objection would cause such a duty to arise, but a defendant's right to due process of law should not depend uponheraffirmative assertion of that right. This is particularly so in the kind of case in which many defendants may waive the right to counsel and not knowthat they have to makeanaffirmative demandfor due processin thefiling decision. The People also fail to discuss the additional authority provided by petitioner which also demonstrates that only the authorized prosecutor can commencea criminal prosecution. Petitioner has cited People v. Smith (1975) 53 Cal.App.3d 655, 659: “The discretionary decision to bring criminal charges rests exclusively in the grand jury and the district or other prosecuting attorney. [Citations.] The choice of the appropriate offense to be chargedis alsowithin the discretionary power of the prosecuting attorney. [Citation.]” (Emphasis original; see Pet., p. 13.) The People do not cite, discuss, or distinguish Smith. Petitioner has noted that the Attorney General has agreedthat due process requires that criminal prosecutionsbeinitiated only after screening by the prosecutor on a case by case basis. (63 Ops.Atty.Gen. 861.) The People do notcite, discuss,or distinguish the Attorney General’s opinion. As noted above, the People erroneously cite People v. Viray, supra, for the proposition that a criminal complaint does notinstitute criminal proceedings, when whatthe case actually says is that while that may be true elsewhere,it is not true in California. (See fn. 1, ante.) However, the People fail to discuss or distinguish that portion of Viray -5- which demonstratesthat thefiling of charges without prior screening by the prosecutor violates due process,andthatthe filing of charges by The People make a lengthy, and to petitioner's mind, absurd argument that court clerks should be permitted to initiate criminal proceedings without prior screening by the prosecutor because the clerk has “personal knowledge” of the commission of the offense. (Opp., p. 13.) However,it is almost universally true that the authorized prosecutorwill not have personal knowledgeof any offense presented to the prosecutorfor prosecution. Thus,this argumentis simply a claim that the prosecutor should not haveto be involved with any decision to initiate criminal charges, since somebody else will inevitably have personal knowledge. That obviously is not, and should notbe,the law. The Peopleclaim that the initiation of criminal proceedingsis a ministerial function. (Opp., p. 18.) The Appellate Division did not find the initiation of criminal charges to be a ministerial duty of a clerk, but held instead that such a powercould properly be exercisedbythe clerk. It is clear that the initiation of criminal chargesis not a ministerial duty. “A ministerial act is an act that a public officer is required to perform in a prescribed mannerin obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power conferred on public functionaries to actofficially according to the dictates of their own judgment. [Citation.]” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502; emphasis added.) Whena dutyis purely ministerial in character, not only is the public officer without powerto exercise any discretion in determining whether or not to perform the duty, but exercise of the duty may be compelled by mandamus. (Id., at p. 501; see State of California v. -6- Superior Court (1974) 12 Cal.3d 237, 247.) If the filing of a criminal chargeis a action within the “ministerial” duties of a court clerk, then a exercise of any discretion whetherto file such charges.If the clerkfails to file such charges, he maybeforced to do so by a writ of mandate. Appellant is unaware of any law or rule which requires court clerks to file criminal charges. Even if court clerks were authorized to file criminal charges, there would be no public duty upon court clerks to file criminal charges, nor could anyone compela court clerk tofile criminal charges in a proceeding in mandate. Thefiling of criminal charges, even were court clerks authorized to do so, is not a ministerial duty. It is, rather, patently obvious that the question of whether a criminal charge shall be filed remains a matter of discretion, as it always has been, and mustbe as a matterof due process as discussed above. Indeed,the entire history of the prosecutorial function in Anglo- American jurisprudence is that the decision whether or not to commencea criminal action is one involving the exercise of discretion. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 451-452.) Even when an offense has undoubtedly been committed, the prosecutorretains the discretion not to file charges. Thus, whether exercised by the public prosecutororthe court's clerk, the prosecutorial function is exactly the opposite of a ministerial duty: “The public prosecutor has no enforceable ‘duty’ to conduct criminal proceedingsin a particular fashion. On the contrary,his obligation is to exercise exclusive professional discretion overthe prosecutorial function.” (id., 53 Cal.3d at p. 453.) Moreover, a claim that the clerk has a “ministerial” dutyto file criminal charges would still fail to respond to the point that allowing (or requiring) the clerk to do so results in a violation of the separation-of- -7- powers doctrine. Whateverthe clerk maybe,the clerk is not part of the executive branch of government. If the Legislature had, in fact, then it would be the Legislature which had usurped the exclusively executive function of commencing criminal proceedings, byitself effectively mandating when and against whom criminal charges should be filed. However, as discussed above, there simply is no such ministerial duty. The People actually claim that the decision whetherto file any failure to appear chargeinvolves no evaluation or exercise of discretion whatsoever. (Opp., p. 18.) Petitioner is disturbed by a prosecutor so devaluing the duties and obligations of a prosecutor, but at any rate it is clear that the People are wrong. There are many issues which must be addressed, even when deciding whetheror notto file a charge of failure to appear. In addition to the same questions which arise when deciding whetherto file any criminal charge (including whether the perpetrator is dangerous and whetherthere are reasonablealternatives to prosecution), many other questions arise with regularity. Shall a criminal chargebefiled if a defendant fails to appear on the date specified on a ticket, but appears one day later? Although, perhaps,a technicalviolation ofthe law has occurred, most prosecutors would probably decline to pursue criminal charges in such a casean exercise of discretion. Shall a criminal charge befiled if a defendantfails to appear, but thereafter provides an excuse? The question of whether a defendant's explanation would provide a legal defense, and whetherin light of that explanation charges should befiled evenif it did notrise to a legal defense, will affect the prosecutor’s decision whethertofile a criminal charge as an exercise of discretion. -8- Shall a criminal charge befiled if the failure to appear is upon a matter merely requiring repair of equipment? Shall a criminal charge paymentof a fine? Again, a prosecutor might well decide nottofile criminal charges in such cases, as an exercise of discretion. Perhaps the most obvioussituation requiring an exercise of discretion is when an accusedfelon hasfailed to appear. Shall that charge befiled as a misdemeanorora felony (see Pen. Code § 1320, subd. (b))? Whatis the clerk's “ministerial duty” in that case:to file the felony, or the misdemeanor? Is it truly the position of the People that clerks caninitiate felony criminal proceedings, and havethe additional authority to makethe discretionary decision to pursue such a charge as a misdemeanor? Whatif the defendant has prior felony convictions? Should those be alleged, andif so, under which applicable statute? Is the clerk bound by local prosecutorial policies concerning thefiling of “third strike” allegations? It simply cannotrationally be claimed thatall that is requiredin filing such a charge is “a review of the court file.” (Opp., p. 18.) Obviously, discretion must be exercised in all of these situations, and more. Even if a decision is made to file all such charges, that decision is still an exercise of discretion. If such discretion is not being exercised by somebody, then, as discussed above, the potential criminal defendant is denied due processof law. If that discretion is being exercised by a court clerk, then the process violates the separation of powers. In either event, thefiling of criminal chargesby court clerks and without prior screening and approval by a prosecutor offends the Constitution. I I I II PENAL CODESECTION959.1 IS AMBIGUOUS AND SHOULD CONSTITUTIONALLY; AMBIGUOUS,IT IS UNCONSTITUTIONAL AND CANNOT BE ENFORCED Petitioner has discussed the ambiguities to be found in Penal Code section 959.1. (Pet. 24-28.) The People argue that the provisions of Penal Code section 959.1 are unambiguous,andthat they providefortheinitiation of criminal proceedings by court clerks. (Opp., pp. 8-13. 2’) However, the People also assert that the prosecution below was broughtin the nameof the People of the State of California, as required by Penal Code section 959. (Opp., p. 12, fn. 5.) However, if section 959.1 is clear and unambiguous,thenit requires that criminal proceedingsinitiated by the court clerk are to befiled “in the name of .. . a Clerk of court.” (Emphasis added. “) Either the People must admit that they are improperly prosecuting a case in the nameofthe People which should be prosecuted in the nameof the clerk, and by an attorney authorized to represent the clerk (which the City Attorneyis not), or they must admit that section 959.1 is not unambiguous. Onceit is recognized, as petitioner suggests it must be, that section 959.1 is not unambiguous,then this court is both privileged and required to interpret that statute so as to preserveits constitutionality. Since, as discussed above, it is unconstitutional for criminal proceedingsto beinitiated by court clerks and without prior screening 3’ The Appellate Division below found that the statute could not be applied according to its terms, since that court found that court clerks are not limited to filing criminal chargesin electronic form. (See Pet., pp. 27-28.) 4! This point wasraisedin the petition before this court. (Pet., pp. 24, fn. 7, 26-27.) The People have simply ignored the problem. -10- and approvalby the authorized prosecutor, this court mustinterpret the statute to permit only the clerk’s reception of chargesinitiated by a prosecutorinelectronicform,asweltasin“hardcopy Frankly, petitioner believesit is obvious that the Legislature was simply providing an additional way for clerks to receive accusations of crimeinitiated by prosecutors. There is simply nothingin the legislative history to suggest that the Legislature believed it was engagedin the momentous change of authorizing court clerks to initiate criminal proceedingsfor the first time in the history of California. However, should this court agree with the People that the statute does authorize clerks to initiate criminal proceedings, then this court must strike that statute down asresulting in an unconstitutional violation of due process and the separation of powers. HHI THE PEOPLE HAVE FAILED TO SHOW THAT THEIR BELATED APPROVAL OF THE “COMPLAINT” FILED IN THIS CASE OCCURREDWITHIN THE STATUTE OF LIMITATIONS PERIOD Petitioner has noted that even if the People could belatedly “approve”a chargefiled by a court clerk, no criminal proceeding could lawfully be initiated until such an approval occurred. Petitioner has further noted that such approval did not occurin this case until long after the expiration of the statute of limitations. (Pet., pp. 22.) The People assert that “the fugitive defendant does not reap the benefit of the statute of limitations” (Opp., pp. 19-20.) The People’s pointis not well taken for two reasons. First, appellant was not a “fugitive” as regards the misdemeanorcharge whichis at issue. A fugitive is one whoflees to avoid a prosecution. Appellant was neverarrested for nor required to appear on the charge of violating Vehicle Code section 40508. It is very doubtful that she even knew such a charge was -11- pending. She may have beena “fugitive” as regards the underlying infractions, but not as to the misdemeanorherein at issue. the statute of limitations merely because the defendantis a fugitive. Penal Code section 803, subdivision (d), provides that the statute of limitation is tolled if the defendantis out of the state, but that provision does not require that the defendant be a fugitive, and the maximum tolling period is three years. Evenif petitioner could have been shown to have been out of state, whichis notlikely, the delay in prosecution wasoverfour years, and thus could not be saved by section 803(d). The claim that the statute of limitations is vitiated if the defendantis a fugitive finds no support in California law. It is true that the issuance of an arrest warrant commences a proceeding for the purposesofthe statute oflimitations. (Pen. Code § 804, subd. (d).) However, this presupposesthat a valid complaint has beenfiled giving a magistrate jurisdiction to issue a warrant, or that a defendanthasfailed to appear in a matter as required by law. (See 66 Ops.Atty.Gen. 256.) As discussed herein, there was no valid complaint in this case, and appellant was never required to appear upon the misdemeanorcharge at issue. Consequently, the People’s argument that the record is insufficient because they did not act to include a document on appeal which might have shownthat a warrant was issued on the failure to appear charge (Opp., pp. 23-24) is specious—even if there was such a warrant, there was no valid complaint which would have authorized the warrant, which would thus // // i] // // ~-12- itself be a nullity, just like the document upon whichit might have been based.2 Finally,_thePeople—assert_that—a_failture_te—appear—_is—a——————__— “continuing offense,” which would theoretically permit the violation to be charged as having been committed on any date upon which the defendant is not in court. (Opp., pp. 20-21.) The People cite no California authority supporting this theory. The People’s reliance upon federal authority is somewhat circular, since federal law (unlike California law) specifically provides that the statute of limitations is inapplicable to a fugitive. (18 U.S.C. § 3290.) Federal courts have thus reasoned that the offense is a continuing offense because the statute oflimitationsis inapplicable. (See United States v. Gray (9th Cir. 1989) 876 F.2d 1411, 1419.) Moreover, although colloquially termed “failure to appear,” the offense defined by Vehicle Code section 40508 is not “failure to appear,” but is wilfully violating a written promise to appear or continuanceof that promise. The “nature of the crime” (Opp., p. 20)is notfailing to appear, but violating a promise to appear. A promise to appearis effective for only one specific date, and no promise to appear is madefor any subsequentdate, and thus could not be violated on any subsequent date. Consequently, the statutory language is not susceptible of being termed a “continuing offense.” {It should be emphasizedthat one of the protections given to the potential criminal defendantis that a prosecutor reviewsthevalidity of a criminal proceeding before a warrantis issued. Otherwise, under the People’s theory, a defendant may be subject to arrest and detention, perhaps for many weeks, on a charge which a prosecutor may ultimately determine should not have beenfiled. Due processis not protected by such a system. -13- Unlikejurisdictions in which the crime is not complete until the defendantfinally appears (see Opp., p. 20), the offense defined in promise to appear. If a chargeis to befiled it can befiled immediately, and mustusually befiled (if a misdemeanor) within one yearthereafter. Unlike the situation in the cases cited by the People, such as United States v. Martinez (10th Cir. 1989) 890 F.2d 1088 (Opp., p. 20, and n.b. fn. 8), there is no question of the offender being able to avoid prosecution by remaining at large until the statute of limitations has expired, since the charge may be brought immediately, and no defense of lack of knowledge of the appearance date could be advanced,since the offenseis not failure to appear, but violation of a promise to appear. However,in fact this issue is not presented by the record ofthis case. The documentfiled in this case alleges a violation of appellant's promise to appear which occurred on July 23, 2002. That document wasfiled on August 12, 2002, and obviously could not serve as an accusation that an offense was committed on somefuture date. When the People “approved” of the document as a complaint, even if that served to convert the documentinto a valid accusatory pleading, they neverthelessdid not purport to amendit to charge anydifferent date for the commission of the offense, and thus the limitations bar was and is apparentfrom the face of the pleading. If the People had wished to test their “continuing offense” theory, since the document which was before the court was a nullity, they certainly could have filed a valid complaint alleging a date of commission within the limitations period (e.g., under their continuing offense theory, any date prior to July 27, 2007) or otherwise alleging facts demonstrating that the statute of limitations had been satisfied. However, since appellant appeared on July 27, 2007, any ability the People had to do so expired nolater than July 27, 2008. -14- Evenif the People could, by later approval, transform aninvalid documentinto a valid accusatory pleading, there wasnovalid pleading the judgmentin this case. IV THIS COURT HAS AUTHORITY TO GRANT EXTRAORDINARYRELIEF IN THIS CASE The People argue that since the Court of Appeal’s order denying transfer is not subject to review, this court should not grant extraordinary relief, even if the Appellate Division's decision is clearly unlawful and permits enforcementofan unconstitutional statute. (Opp., p. 22.) However, the ability of this court, and of the Court of Appeal, to act upon a petition for extraordinary relief, despite the lack of authorization for direct review of Appellate Division (previously, Appellate Department) rulings, when necessary to decide important points of law, has been settled for decades. (See, in addition to the casesalreadycited in Paragraph XVII ofthe petition, Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454; In re Zerbe (1964) 60 Cal.2d 666, 667; In re Panchot (1968) 70 Cal.2d 105, 107; Bellamyv. Appellate Division (1996) 50 Cal.App.4th 797, 800.) Writs have issued to the Appellate Division even whenthat court certified the matter to the Court of Appeal, resulting in a denial of transfer. (In re Zerbe, supra, 60 Cal.2d at p. 667.) Thus, there would seem to be no basis for concluding that the new rules permitting a party to seek transferin the absence of Appellate Division certification would make anydifference in the availability of relief. In fact, this court has itself recently recognized the availability of this procedure, even after the adoption of the new rules. (See Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1405 [this court treated the matter as one in certiorari in that case].) Accordingly, given the importance and -15- continuing nature of the issues in this case, and the clear violation of constitutional standards authorized by the Appellate Division, writ th appropriate. CONCLUSION The People assert that this court should not act because there is no conflict in appellate decisions interpreting Penal Code section 959.1. (Opp., p. 24.) That is obviously becausethere are no published appellate decisions interpreting that statute. What there is, however, is a large and consistent body of law showing that if that statute authorizes court clerks to initiate criminal proceedings, there is a conflict betweenthat statute and constitutionally-mandated due process and separation of powers. That conflict should not be allowed to fester in California law, and it is to resolve that conflict that petitioner has presented this important and constantly recurring issue to this court. This court should accordingly issue its writ of mandate as prayed. Respectfully submitted, llya Alekseyeff, John Hamilton Scott, Deputy Public Defenders beeten~ John Hamilton Scott» S/oDeputy Public Defender Attorneys for Petitioner B -16- CERTIFICATE OF WORD COUNT Counsel of Record hereby certifies that pursuant to the California Rules of Court, the REPLY TO PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF PROHIBITION/MANDATE in this action contains 4,659 words. Counselrelies on the word count ofthe WordPerfect X3 program usedto prepare this brief. A TOHN HAMILTON SCOTT Lo Deputy Public Defender DECLARATION OF SERVICE I, the undersigned, declare: I am overeighteenyears of age, and not a party to the within cause; my business addressis 320 West Temple Street, Suite 590, Los Angeles, California 90012; that on August 27, 2009,I served a copy ofthe within REPLY TO PRELIMINARY OPPOSITION TO PETITION FORWRIT OF MANDATE, JEWERELENE STEEN,oneach ofthe persons named below by depositing a true copy thereof, enclosed in a sealed envelope with postage fully prepaid in the United States Mail in the County of Los Angeles, California, addressed as follows: ATTORNEY GENERAL STATE OF CALIFORNIA 300 SOUTH SPRING STREET LOS ANGELES, CA 90013 PRESIDING JUDGE SUPERIOR COURT 111 NORTH HILL STREET LOS ANGELES, CALIFORNIA 90012 CLERK, APPELLATE DIVISION SUPERIOR COURT 111 NORTH HILL STREET LOS ANGELES, CALIFORNIA 90012 CARMEN TRUTANICH, CITY ATTORNEY CRIMINAL APPELLATE DIVISION 500 CITY HALL EAST 200 N. MAIN STREET LOS ANGELES, CA 90012 CLERK, CALIFORNIA COURT OF APPEAL 300 SOUTH SPRING STREET LOS ANGELES, CA 90013 I declare under penalty ofperjury that the foregoingis true and correct. Executed on August 27, 2009, at Los Angeles, California. oo FREDDYCSsPOS en