STEEN v. APPELLATE DIVISION

Petitioner’s Supplemental Traverse to Return of Real Party in Interest and Motion to Strike Exhibits

Cal.January 22, 2013

$174773 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Copy JEWERELENE STEEN, $174773 Petitioner, (2d Dist.No. B217263; App.Div.No. BRO46020; Trial Ct.No. 6200307) V. APPELLATE DIVISION OF THE LOS ANGELES COUNTY SUPERIOR COURT SUPREME COURT FILED ~~ f CRC \ JAN 22 2013 \8.25(by Respondent, PEOPLE OF THE STATE OF CALIFORNIA, Real Partyin Interest. Frank A. McGuire Clem | N e e r e e e e O e e e e e e e e e e e e e e e e e e e e e Deputycnet PETITIONER’S SUPPLEMENTAL TRAVERSE TO RETURN OF REAL PARTY and MOTION TO STRIKE EXHIBITS From the Appellate Division, Los Angeles County Superior Court Hon. Patti Jo McKay, Presiding Judge RONALD L. BROWN, 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) 974-3002 Attorneys for Petitioner O€-6CNOISNTONOO 62-2¢GSayuVE-SWILSYAMLNIVIdWIOO FHLNIGaAYYNONODHYOLNDASOYdAHL NSHMGALVILIN|SHSMHOIHMSONIGSS900Ud IVNININDSHLYSHLAHMANIWAALAC OLANVSSHOANSHVSONIGSSOONdYSHLYNGSLil cc-8lSSATLINAINSIGALVILINISILIdalav NOILLNOASONdWNIWIYSVSSINSICOLALITNIEV GAWIVIOSHOLNOSSONdAHLAddSaL04aL0dd S|SSAOONdANGLVHLWIVIDS.3A1dOddSHLi QL-8SSaI00YdSANGHLIMSLYOdNODSONIGAS9NOUd IWNIWIMOALVILIN|OLSHYS1DONIMOTIVLVHL FILVYMLSNOWAGOLGalsSAVH31d0SdAHL g-ZNOILONGOYLNI SSILIMOHLAVGNVSLNIOd 9NOILVOIsIGSA G-}IILSOLNOILOWNVSSesAVaLWINSWAIddns XSGNIWOIdOL TABLE OF AUTHORITIES CITED Page Cases Bordenkircher v. Hayes (1978) 434 U.S. 357 12 Dix v. Superior Court (1991) 53 Cal.3d 442 11 Gananian v. Wagstaff (2011) 199 Cal.App.4th 1532 7 People v. Abayhan (1984) 161 Cal.App.4th 324 24 People v. Angel (1999) 70 Cal.App.4th 1141 28 People v. Benevides (1998) 64 Cal.App.4th 728 18 People v. Black (2003) 114 Cal.App.4th 830 7 People v. Daggett (1988) 206 Cal.App.4th Supp.1 7 People v. Eubanks (1996) 14 Cal.4th 580 13 People v. Johnson (2006) 145 Cal.App.4th 895 28 People v. Madden (1988) 206 Cal.App.3d Supp. 14 16 People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193 8,9,10,11,12,13 TABLE OF AUTHORITIES CITED (Cont) Page Cases(Cont.) People v. Peevy (1998) 17 Cal.4th 1184 3 People v. Romero (1936) 13 Cal.App.2d 667 19-20 People v. Sesslin (1968) 68 Cal.2d 418 26 People v. Superior Court (Copeland) (1968) 262 Cal.App.2d 283 25,26,27-28 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 19 People v. Tenorio (1970) 3 Cal.3d 89 19 People v. Viray (2005) 134 Cal.App.4th 1186 9,10,21 People v. Williams (1999) 21 Cal.4th 335 4,23 Tracy v. Municipal Court (1978) 22 Cal. 3d 760 25 United States v. Cowan (5th Cir. 1975) 524 F.2d 504 19 Winton v. Municipal Court (1975) 48 Cal.App.3d 228 3 TABLE OF AUTHORITIES CITED(Cont) Statutes Education Code § 15288 Government Code § 100, subd. (b) § 26500 Penal Code § 684 § 802, subd. (a) § 803, subd. (d) § 817 § 959.1 § 1385 § 1386 Vehicle Code § 40508 § 40515 Constitutions United States Constitution Fourth Amend. Court Rules Federal Rules of Criminal Procedure rule 48(a) rule 48(b) -|V- N I N 7 15 15 28 2,7,10 19 8,18,19 23,24,25,26,27 24,26 26 19 19 TABLE OF AUTHORITIES CITED (Cont) Page | Texts and Others 56 Ops.Atty.Gen 165 25,26 ABAStandards of Criminal Justice 13,14 Relating to the Prosecution Function Standard 3-1.2(b) 14 Standard 3-1.2(c) 14 Boren, “The Hillside Strangler Trial” 33 Loyola L.A. L.Rev. 707 20 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA JEWERELENESTEEN, $174773 Petitioner, (2d Dist.No. B217263; App.Div.No. BRO46020; Trial Ct.No. 6200307) V. APPELLATEDIVISION OF THE LOS ANGELES COUNTY SUPERIOR COURT Respondent, PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. S a m e N i e N e e e e c m e N e N e e e n e S i n e t n e ” S e e ” S m e e ” S e e ” S e ” PETITIONER’S SUPPLEMENTAL TRAVERSE TO RETURN OF REAL PARTY and MOTION TO STRIKE EXHIBITS 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 makes her Traverse to the Supplemental Return filed on behalf of real party in interest People (hereinafter “Supp.Ret. RPI”). | Petitioner realleges as true all allegations contained in her petition for writ of mandate, and denies any contrary allegations in the Supplemental Return. -1- I] Petitioner admits the allegations of the Return insofar as they may be supported by the record before this court, while not admitting that all those allegations are relevant to the issues presented bythis proceeding, with the following exception. Ht Petitioner denies the allegation made in Paragraph 9 of the Supplemental Return (previously found in Paragraph3 of the Return) that the complaint in this matter was “electronically filed.” Petitioner affirmatively alleges that the evidence tendsto showthat the complaint wasnot electronically filed, since the documentis signed. Petitioner further alleges that the Appellate Division found it unnecessary to resolve the question whether the document waselectronically filed, ruling instead that Penal Code section 959.1 permits courts clerkstofile criminal charges, whetherelectronically or otherwise. (Exh. “F,” p. 5.) Petitioner does not dispute that a warrant was issued for her arrest in 2002. However,petitioner denies that any records showthat an arrest warrant was issued for violation of Vehicle Code section 40508 following a determination by a magistrate that petitioner had failed to appear. IV Petitioner denies the allegations in Paragraph 11 of the Supplemental Return except insofaras those allegations are quotations from the record. In particular, petitioner denies that petitioner did not challenge her prosecution as time barred. Petitioner affirmatively alleges that petitioner’s counsel specifically stated that since the offense of failure to appear occurred in 2002, the initiation of proceedings by virtue of the City Attorney's concurrence in the complaint filed by the clerk in 2007 was “too late,” which was a referenceto the statute oflimitations. 2. Moreover,the statute oflimitations issue never materialized in the trial court. The trial court ruled that proceedings commencedin 2002 whentheclerk filed the complaint. The statute oflimitations issue does not arise unless it is determined that it is the consent of the prosecutor whichinitiates a criminal proceeding. Consequently, despite counsel’s argument, there was actually no basis for a statute of limitations objection. V Petitioner denies the allegation in Paragraph 12 that the complaint does not show onits face that the prosecution was time- barred. All the complaint shows is a documentfiled by a clerk. The complaint does not showonits face the concurrenceof the authorized prosecutor,and thusonits face fails to demonstrate satisfaction of the statute of limitations by the filing of a valid accusatory pleading. Vi Petitioner denies that the issuance of an arrest warrant constituted the commencementof criminal proceedings, as alleged in Paragraph 13, and deniesthat the record before this court is sufficient to resolve that issue. Petitioner also notes that no such claim was madein the trial court, and the documents before this court were not considered by the trial court, nor by the Appellate Division. v Accordingly, those documents are not properly presented to this court in the first instance, and must be stricken. “[A]n appellate court is not the forum in which to develop an additional factual record... .” (People v. Peevy (1998) 17 Cal.4th 1184, 1207; see also Winton v. Municipal Court (1975) 48 Cal.App.3d 228, 236-237.) Petitioner therefore movesthis court to strike those exhibits from the record. ¥ The People made a motion to have the Appellate Division consider those documents, which was not granted. -3- However,petitioner acknowledgesthat since boththetrial court and Appellate Division ruled that proceedings against petitioner commencedwith theclerk’s filing of a complaint, the question whether a prosecution commencedin 2007 wastimely was neverpresented to the trial court for resolution. Thus, should this court agree that court clerk’s cannotinitiate criminal proceedings absentthe prior screening and approval by the authorized prosecutor, petitioner suggests thatthis matter should be remandedto the trial court so that the People may have the opportunity to provethattheinitiation of proceedings in 2007 wasnot barred bythe statute of limitations. VII Petitioner denies the claim in Paragraph 14 that the entry of a plea of no contest results in forfeiture of the righttolitigate a statute of limitations issue. It is well settled that a conviction, even if based on a plea of guilty, is subject to collateral or direct attack if the charge was originally barred by the applicable limitation period. (People v. Williams (1999) 21 Cal.4th 335, 340.) Vil Petitioner incorporates herein all allegations and argument madein herpetition for writ of mandate, as well as all documentsfiled thereafter. The accompanying points and authorities are also incorporated herein by reference. // I // iI I [I I] I WHEREFOREpetitioner renewsherprayerthat this court order the Appellate Division of the Los Angeles County Superior Court to recall its remittitur and to vacate and set aside its judgment of June 8, 2009, and to thereafter reverse the judgmentofthe trial court on the basis that the charge in this case was improperlyinitiated by a court clerk, and to remand the matter for such further proceedings as may be appropriate. RONALD L. BROWN, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA Deputy Public Defender VERIFICATION STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES * John Hamilton Scott declares as follows: | am an attorney at law licensed to practice in all the courts of California, and | am employed as a deputy public defender for the County of Los Angeles. In that capacity | am attorney of record for petitioner in the foregoing traverse, and | makethis verification on her behalf for the reason that the facts alleged therein are more within my knowledge than hers. | have read the foregoing traverse and the exhibits heretofore lodged with this court, and | know the contents thereof to be true as based upon myreading oftrue copies of court documentsonfile in this action and my representation of petitioner in the Appellate Division and the Court of Appeal. | declare under penalty of perjury that the foregoing is true and correct. Executed this 15th day of January, 2013, at Los Angeles, ohn Hamilton Scott Deputy Public Defender California. POINTS AND AUTHORITIES INTRODUCTION At the outset, petitioner reiterates her position that in amending Penal Code section 959.1, the Legislature was not attempting to give court clerks the powerto initiate criminal proceedings. Petitioner notes the decision of Gananian v. Wagstaff (2011) 199 Cal.App.4th 1532, a case decided subsequentto the filing of that petition. It was there contended that Education Code section 15288 either created a mandatory duty upon the prosecutorto file charges, or allowed private parties to compel the prosecutor to do so. After a lengthy discussion of the constitutional underpinnings of the prosecutor’s exclusive right to initiate criminal proceedings,the court stated, “[E]ven assumingfor the sake of analysis that the Legislature could constitutionally mandate prosecutions for one category of alleged criminal offenses,it would be remarkableif it did so without acknowledging and clearly stating thatit was making an exception to the principle of prosecutorial discretion.” (Id., at p. 1544, emphasis added.) One may examine section 959.1 in vain for any such clear statementof the Legislature’s intent to imbue court clerks with the powers of prosecutors. Oneof the issuesraisedin petitioner's original Petition for Writ of Mandate was that the idea the individuals could file criminal pleadings,evenif subject to the approval of the authorized prosecutor, had been supersededbylaterlegislative action firmly placing the filing of criminal chargesin the handsof the prosecutor, and mandatingthat such prosecutions be brought in the nameof the People, who cannot be represented byprivate individuals. (See Pet., pp. 23-23; see Pen. Code § 684, Gov. Code §§ 100, subd. (b), 26500, People v. Black (2003) 114 Cal.App.4th 830, 833; People v. Daggett (1988) 206 Cal.App.3d Supp. 1, 4.) However, this court did not issue an orderto show cause asregardsthese issue, which have consequently not been -7- further discussed by petitioner. Petitioner wishes to makeit clear that she has not abandoned thesepoints, and only assumesthevalidity of the Pellegrino discussion of private partiesfiling criminal pleadings for the purpose of responding to the issues which upon whichthis court has requested discussion. THE PEOPLE HAVE FAILED TO DEMONSTRATE THAT ALLOWING CLERKSTO INITIATE CRIMINAL PROCEEDINGS COMPORTS WITH DUE PROCESS “The due process clause of both United States and California Constitutions is a bar to the deprivation of liberty except by the regular administration of the law and in accordancewith general rules designed to protect individual rights. “(T]he theme which runs throughoutthe criminal procedurein this state is that all person should be protected from having to defend against frivolous prosecutions and that one major safeguard against such prosecutionsis the functionof the district attorney in screening criminal cases prior to instituting a prosecution.” (People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 205-206, emphasis added, footnote omitted.) The People begin their latest argument by discussing prior claims regarding the application of the separation of powers doctrine. Theynote that allowing the judiciary to initiate criminal proceedings“did not violate the separation of powers doctrine becauseit did not impede the prosecution’s ability to exercise its independent discretion on whether to authorize or concur in the prosecution of charges.” (Supp.Ret. RPI, p. 15.) Of course, petitioner has showntheinvalidity of this claim, and does so again below. Once criminal proceedings have beeninitiated, the prosecutor is without powerto terminate those -8- proceedings. That powerrests exclusively with the judiciary, and thus allowing the judiciary to initiate criminal proceedings divests the prosecutionofits ability to authorize or concur in the prosecution of the charges. (Pen. Code § 1386; People v. Viray (2005) 134 Cal.App.4th 1186, 1202-1203.) In their discussion of the due processimplications of allowing court clerks to file criminal charges, the People begin by appearing to agree with petitioner's construction of Pellegrino and its progeny on most points. Under Pellegrino, a criminal complaint can be signed and submitted by a private person. 2 However, that complaintis ineffective to commencea criminal prosecution until such time as the authorized prosecutor has screened the case and approved or authorized the complaint. Until such time as the prosecutor has given that authorization, the complaintis a nullity. The People seem to agree that a criminal charge is a nullity if filed by a non-prosecutor without authorization from the prosecuting attorney. (Supp.Ret. RPI, p. 17.) The People seem to recognize the holding of People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193 that a criminalfiling “must be ‘approved, authorized or concurred in’ before the private person’s complaint can be effective in instituting criminal proceedings.” (Supp.Ret. RPI, p. 17; emphasis added.) However, the ultimate position of the People is that the prosecutor may “forgo a case-by-case review and instead approve and concur in all failure to appear complaints filed by clerks ... .” (Supp.Ret. RPI, p. 23.) It is thus the position of the People that the prosecutor can give anticipatory and blanket authority to a private person to initiate criminal proceedings within that private _person’s 2’ Howthat private person can lawfully file a document in the nameof the People, as statutory required, remains problematical. -9- discretion, andthat this prior authority serves to allow a private person to initiate criminal proceedings without any overview by a prosecutor either before or after the proceedingsareinitiated. Thus, under the People’s theory, they can advisean individual (including a court clerk) that the individual is empowered toinitiate criminal proceedings—or simply not object to the individual doing so—and that satisfies the due process concernsdiscussedin Pellegrino and Viray. Of course,if this were true, then it was true when Pellegrino and Viray were decided. If the People are right, then no statutory authorization was necessaryfor the prosecutorto exercise his authority to delegate his duties to private citizens, and the Legislature was making no changein the law in amending Penal Code section 959.1. 2 Moreover, the Legislature’s limitation of the authorization purportedly given clerks to initiate criminal proceedings to those complaintsfiled electronically would beineffective, since clerks (or anybody else) could file any complaints so long as a prosecutor did not object to the practice. The Peoplefail to demonstrate that giving blanket authorization to an individualto initiate criminal proceedings comports with the due process concernsdiscussed in Pellegrino. If the prosecutoris allowing someoneelseto initiate criminal proceedings, then the prosecutoris not “screening criminal casespriorto instituting a prosecution.” The People assert that petitioner has not cited any authority for the proposition that a defendant has a due processright to have a 3 This also appears to have been the conclusion of the Appellate Division below, which held that a clerk could file criminal proceedings even if they were not electronically filed despite that limitation in Penal Code section 959.1. The Legislature does not appearto have agreedthatit did not have to take action to authorize such a procedure. -10- prosecutor screen criminal charges before a prosecutionis initiated. (Supp.Ret. RPI, p. 20.) This claim is unfathomable in view notonly of the many decisions, statutes, and standards cited by petitioner (cf. Petition for Writ of Mandate, pp. 12-18), but particularly in view of the prosecutors own description of the holding in People v. Municipal Court (Pellegrino), supra, 27 Cal.App.3d 193: “the filing must be ‘approved, authorized or concurred in’ before the private person’s complaint can be effective in instituting criminal proceedings.” (Supp.Ret. RPI, p. 17; emphasis added, internal quotation marks omitted.) Nevertheless, although notdirectly saying so, the People appearto challenge the holding of Pellegino, concurred in by Viray, by referencing this court’s decision in Sundance v. Municipal Court (1986) 42 Cal.App.3d 1101, in which this court stated, “Plaintiffs cite no authority for the proposition that the prosecutor’s failure to exercise sufficient, or indeed any, discretion in determining whethertofile charges constitutes a denial of due process.” (Id., at p. 1132; see Supp.Ret. RPI, 21.) However, since this court was no doubt awareof the decision in Pellegrino, it is obvious that this court was discussing a different issue. Whena prosecutor decides whom to charge, what chargesto file, and what punishment to seek, the courts presume that prosecutorial discretion has been legitimately founded in all the “complex considerations” which a prosecutor alone hasthe authority, and the expertise, to consider. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) Thus, when the prosecutor makes a charging decision, the courts are not in a position to interfere with how a prosecutor exercises his discretion, nor to define what factors the prosecutor must considerin initiating a criminal proceeding. Thatis the point being made in Sundance: whenit is the authorized public prosecutor who acts, the courts will presume the prosecutor acted -141- properly and not set forth a laundry list of factors the prosecutoris required to consider. However, no such presumption may be indulged whenit is a clerk whoinitiates the proceedings, since a clerk has none of the constitutional or ethical duties of the public prosecutor. ¥ Significantly, there is at least one factor that a prosecutor must determine exists before a criminal proceeding in initiated: whether there is probable cause to believe that the person to be accused committed a criminal offense. “In our system, so long as the prosecutor has probable causeto believe that the accused committed an offense defined by statute, the decision whetheror not to prosecute, and what chargeto file or bring before a grandjury, generally rests entirely in his discretion.” (Bordenkircher v. Hayes (1978) 434 U.S. 357, 364, emphasis added.) See also California Rules of Professional Conduct, rule 5-110: “A member in government service shall not institute or cause to beinstituted criminal charges when the member knowsor should know that the charges are not supported by probable cause.” It seems obvious that a prosecutor cannot avoid this responsibility simply by refusing to look at the charges before criminal charges are instituted and that potential defendants have a due process right to have that decision madebythe prosecutor. Of course, in Sundance charges were filed by the authorized prosecutor, and there does not appear to have been any suggestionin Sundance that charges were being filed in the absence of a prosecutorial determination of probable cause. The fact that a prosecutor may believe that a person whoprovides information that a crime has been committed (such as a clerk or police officer) is usually 4’ Whata clerk also does not have is prosecutorial immunity. That may be of concern given the claim of the Appellate Division that thousands of cases have beenfiled beyond the applicable statute of limitations. -12- correct in that assessment does not relieve the prosecutor of the independent constitutional and ethical duty to independently determine that such probable cause exists, and to initiate criminal charges only after having madethat determination. Obviously, a prosecutor might decide not to exercise any discretion at all beyond making the required probable cause determination. However, the point of Pellegrino is that the defendant has a due processright to have charges screened beforetheyarefiled by a public official who at least can exercise appropriate prosecutorial discretion. * This court has recognized that prosecutorial discretion extends far beyond a mere probable cause determination, and has stated that “The importance, to the public as well as to individuals suspected or accused ofcrimes, that these discretionary functions be exercised ‘with the highest degreeof integrity and impartiality, and with the appearance thereof[citation]... .” People v. Eubanks (1996) 14 Cal.4th 580, 589; emphasis added.) Allowing otherparties, especially those employedbythe judiciary,to initiate criminal proceedings does not assure the exercise of discretion with integrity and impartiality, and certainly does not result in the appearance of such conduct. The requirement of due processis that the decisiontoinitiate criminal proceedings is madeby the prosecutor, and not by someother person. It is only the prosecutor who hasthe duty, the authority, and the expertise to properly exercise prosecutorial discretion. Since the charges in Sundance were being reviewed andfiled by the authorized prosecutor, that decision has nothing to do with the issue of how the 5/ The Pellegrino court noted the American Bar Association's standards for prosecution, including the standard that “The prosecutor should establish standards and procedures for evaluating complaints to determine whethercriminal proceedings should beinitiated.” (Id., 27 Cal.App.3d at p. 206, fn. 8.) -13- authorized prosecutor must review charges before a_ criminal proceedingis initiated. That is undoubtedly the reasonthat Pellegrino is not even mentioned in the Sundanceopinion. It may be that a prosecutor has no constitutional duty to exercise discretion in the filing of criminal charges, beyondhis duty to assure that charges are supported by probable cause. However, a prosecutorcertainly has the ethical duty to do so. As stated in the ABA Standards of Criminal Justice Relating to the Prosecution Function, “The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sounddiscretion in the performanceof his or her functions.” (Standard 3-1.2(b).) Additionally, “The duty of the prosecutor is to seek justice, not merely to convict.” (Standard 3-1.2(c).) These ethical duties are not applicable to court clerks, norto any otherindividual to whom a prosecutor might delegate his charging responsibility. Even though the courts may presumethat the prosecutorhasfulfilled these functions, that does not detract from the fact that a criminal defendant has at least a due processinterestin assuring that charging decisions are made by the public official who has those ethical responsibilities, even if the prosecutor may chooseto ignore those duties. The People also assert that there is no need to impose those kinds of ethical duties upon the personfiling failure to appear charges. (Supp.Ret. RPI, pp. 22-23.) The Peoplefirst assert that “There are no legal issues to evaluate.” (Id., at p. 22.) However, the Return filed by the Appellate Division showsthis to be incorrect. According to the Declaration provided by the reviewing court, “The Clerk electronically issues andfiles under section 959.1(c) complaints for failure to appear not only for recent violations but also for violations going backfive or even ten years.” (Supplemental Return, Appellate Division, Dec., p. 3.) -14- The statute oflimitationsforfiling charges against a person who has violated his promise to appearis one year(unlesstheclerkisfiling felony charges,in which casethe limitations period would the three years). (Pen. Code § 802, subd. (a).) Ifa prosecutor determined that the defendant was out of state after the offense was committed, allegations could be included in an accusatory pleading extending that period, but only for a maximum of three additional years. (Pen. Code § 803, subd. (d).) Obviously, such matters are beyond the knowledge of a clerk, and petitioner would be astoundedif appropriate allegations were included in any complaintfiled over a year after the event. ” Since this information was providedin support of the claim that there are 8,000 complaints for failure to appearfiled each week(a claim which remains perplexing), one may only assumethat the Appellate Division is asserting that there are thousandsof cases beingfiled which are actually barred bythe statute of limitations. From the Declaration, it would appearthat the reasonthis is not comingto light is that the trial courts are obtaining agreements from defendants to have misdemeanor charges reduced to infractions without appointing counsel and in the absence of a prosecutor. The defendants are then allowed to enter guilty pleas in ignorance of the time-barred nature of the charges—charges which have never been seenby either a prosecutor or defense attorney. One would expect that even the most cursory review of these casespriorto the initiation of charges by the authorized prosecutor would screen out thousandsof time-barred prosecutions, and thus avoid the improper prosecution—and conviction—of defendants against whom charges should never have been brought. Petitioner a! Petitioner has noted that clerks are not protected by prosecutorial immunity for improperlyfiling criminal charges. In view of that, the clerk’s institution of perhaps thousandsoftime-barred charges must be viewed with concern. -15- suggests that this “legal issue” alone is sufficient reason to recognize that due process requires screening by the public prosecutor before chargesareinitiated. Another legal issue that must be determined is whether the charge should befiled as a misdemeanoror an infraction (or in the case of a failure to appear upon a felony charge, as a felony or a misdemeanor). The Appellate Division claims that court clerksfile all failures to appear as misdemeanors, but that upon the defendants’ appearance the court will advise the defendant that the prosecutor believes the case is properly prosecuted as an infraction. (Supp.Ret. App.Div., Declaration, p. 3.) There is no suggestion that the judiciary is engaging in plea bargaining with the defendant and offering a reduction only in exchangefor a guilty plea. It thus appears that the court clerks are filing thousands of charges which,if the prosecutor were involved, would be filed as infractions. Even if the Appellate Division's claims are incorrect (and petitioner suspects they are), it remainstrue that a legal decision as to the level of the charge must be madeby a prosecutor whencriminal proceedingsareinitiated. Yet anotherlegal issue is whetherthe failure to appear charge is to be joined with the underlying traffic infractions. The Los Angeles County Superior Court Appellate Division held that such joinder is improperin People v. Madden (1988) 206 Cal.App.3d Supp. 14. Yet, as demonstratedin this case, the clerk simply joins the new charge with the traffic infractions. If there is some reason to ignore the ruling in Madden,that is obviously a legal determination which must be made by a prosecutor, not by a clerk. The People also claim that it is more efficient for charges to be filed by a clerk, because otherwise clerks would have “to submit documentation of thousands of failure to appear offenses to the prosecutor... .” (Supp.Ret., RPI, p. 22.) However, the People seem -16- to acknowledge that at some point a prosecutor must review the charges,if only to exercise the prosecutor's purported authority to dismiss them. Thus,evenif efficiency wasa valid basis for restricting due process, the claimed efficiency does not exist. All the documentation must at somepoint be provided to the prosecutor—the only question is one oftiming. The People also assert that no investigation need be done, because the failure to appear alone constitutes the offense. (Supp.Ret., RPI, p. 22.) However, this merely highlights why there is a need for prosecutorial discretion to be exercised. As petitioner has noted, there are manycases in which, despite a record showing a failure to appear, a prosecutor might well decide not to file a criminal charge. Whatif the defendant has an excuse for his nonappearance? The question of whether there is such an excuse is one which will require an inquiry. Thefailure to appear alone might not constitute the offense. Whether there is an excuse, or the excuse given is legally sufficient to constitute a defense, or whetherdespite legal insufficiency it is sufficient to make a prosecution inadvisable, are obviously not issues which canorwill be resolved by a clerk. Whatif the defendant is one day late? Whatif the failure to appearis solely for an equipmentviolation “fix it ticket’? What if the defendanthasnotfailed to appear, but is late with payment ofa fine? In all these cases,an investigation may be necessary both to determine whether, in fact, a crime has occurred and, if it has, whether a prosecution is advisable. In short, the People have failed to make any argument which defeats the proposition which has beenbasicto the law ofCalifornia for at least four decades:the actions ofa private person in purportingtofile a criminalaction do notinitiate a criminal proceeding until such time as -17- a prosecutor has screened the charges to be brought, and has approved, authorized, or concurred in the commencementof a criminal action. In this case, that did not occur until 2007, long after the expiration of the statute of limitations. I THE PEOPLE’S CLAIM THAT DUE PROCESS IS PROTECTED BY THE PROSECUTOR’S CLAIMED ABILITY TO DISMISS A CRIMINAL PROSECUTION AFTER IT IS INITIATED IS MERITLESS As has beenthe case throughoutthislitigation, the prosecutor is faced with the problem that once a criminal proceeding has been initiated it is no longer within the powerof the prosecutorto terminate that proceeding. The power of termination rest exclusively with the judge. (Pen. Code § 1386.) The prosecutor’s current answerto that dilemmais to assert that “In the unlikely event that a court refused a prosecution request to dismiss when ‘society represented by the People’ did not have a ‘legitimate interest’ in the prosecution of the offense, the court would have overstepped the boundsofits judicial function and its ruling would be reviewable as an abuseofdiscretion. [Citations.]” (Supp.Ret. RPI, p. 25.) The People’s argument fails. In the first instance, it is questionable whethera court’s decision not to exerciseits discretion to dismiss can be reviewedin any event. The law is clearthata trial court must be aware ofits authority, and must consider the factors bearing uponits decision. But if the trial judge simply comes to a different conclusion regarding the impact of those factors than the defendant, the prosecutor, or a reviewing court, the matter is not subject to any interference by any other court: “There is no authority granting the appellate courts the ability to review a court’s informed decision to not -18- exercise its section 1385 powerin the furtherance ofjustice.” (People v. Benevides (1998) 64 Cal.App.4th 728, 735.) The sole authority relied upon by the People for a contrary conclusion is a federal case, United States v. Cowan (5th Cir. 1975) 524 F.2d 504, which obviously is not discussing the standards of Penal Code sections 1385 and 1386, but which the People assert is “instructive.” (Supp.Ret. RPI, pp. 23-25.) That case concerned the application of Rule 48(a) of the Federal Rules of Criminal Procedure, which permits a prosecutor to abandon a prosecution “with leave of court.” The Cowan decision makesit clear that this rule did not “usurp or interfere with the good faith exercise of the Executive power... ,” but was intended solely to protect defendants from harassment and assure the fair administration of justice. Thus, the Government’s “absolute power’to terminate a prosecution need only be exercised “in goodfaith,” and a governmental decision not to prosecute may not be disturbed unlessit is “clearly contrary to manifest public interest.” (United States v. Cowan, supra, 524 F.2d at pp. 509-512; emphasis added.) Contrary to the assertion of the People, this decision is hardly “instructive,” since the federal law is vastly different from the law in California. ” The People co not have the “absolute power’to terminate a prosecution. “Formerly, the prosecutor alone had authority to dismiss a criminal action, but with the adoption of sections 1385 and 1386 of the Pena! Code,this authority was transferred to the court.” (People v. a One of the most notable differences between federal procedure and that of California is that the federal court has no power to dismiss a prosecution on its own motion except for unnecessary delay. (FRCP, Rule 48(b): compare People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509-517; People v. Tenorio (1970) 3 Cal.3d 89, 94.) -19- Romero (1936) 13 Cal.App.2d 667, 670.) The powerto dismiss has thus beentotally removed from the prosecutor, who can only move the court for an order of dismissal, which the court is completely free to deny, even if the court does not dispute that the motion is made “in goodfaith.” It is obvious that in the vast majority of cases a court will grant a prosecutorial motion to dismiss, and—perhaps due to the universal understanding of the principle thatit is the court's discretion which is involved—petitioner is unaware of any published opinion discussing whethera court abusedits discretion in denying such a motion from the prosecution. However, petitioner may refer to one highly-publicized case where the prosecutor moved to dismiss in the good faith belief that a prosecution would not be successful and that motion was denied—the case of Angelo Buonoin which then Superior Court Judge Ronald George denied such a motion. (See Boren, “The Hillside Strangler Trial,” 33 Loyola L.A.L.Rev. 707, 710-711.) Under the People’s theory, the court erred in refusing to dismiss the Buono prosecution, since the prosecution had a goodfaith basis for makingits motion to dismiss. Obviously, the court did not agree. The point the People ignoreis that under California law it is the court, not the prosecutor, whose determination of what may, or may not, be in the interests of justice is determinative. If the prosecutor's views werethetest, then there could be a system muchlike that found federally. However, in Ca!ifornia a prosecutor’s conclusions regarding the interests of justice do not bind the court and maynotatall times be equivalent to conclusionsof the judiciary. Factors a prosecutor may properly considerin determining whetherto bring charges are whether there are alternatives to conviction and the prosecutorial costs involved in pursuing a charge. Those factors may not motivate the judiciary. Take, for example, a case in which the defendanthasfailed to appear -20- on driving infractions. A prosecutor might decide not to charge the failure to appear should the defendant admit guilt on the infractions and pay a fine. A prosecutor could conclude that pursuing misdemeanor charges in such a case is not worth the expense to the taxpayers. However, faced with a motion to dismiss the failure to appear charge, a judge might believe that it is more important to deter people from violating their promises to appear by proceeding with the prosecution. That would be an abuse of discretion under federal standards. In California, however, the decision not to dismiss under such circumstances, even if reviewable, would plainly not constitute an abuse ofdiscretion. Thus, the due process right of the defendant to have the prosecutor make the decision on what chargesto bring is not protected by the procedure whichgives the judge discretionary powerto grant a motion to dismiss. Moreover, since the judge can indisputably deny a prosecutor’s motion to dismiss for valid reasons independent of the prosecutor’s views, what the prosecutoris suggesting is no less than that the discretionary powerto initiate a criminal may be exercised by someoneother than the authorized prosecution, and thatthe ability to maintain a criminal prosecution thereafter may lawfully be shifted from the prosecutor to the judge. As was stated in People v. Viray, 134 Cal.App.4th at p. 1203, that would effectively make the prosecutor a functionary of the court in violation of the separation of powers. Not only does this deny the defendant the due processright to review by the prosecutorbefore criminal proceedingsareinitiated, it also violates the separation of powers doctrine. Thus, the argument by the People that a defendant’s due process right to the exercise of prosecutorial discretion before a criminal proceedingis filed is satisfied by the prosecutor’s ability to -241- dismiss after charges are initiated fails. And if fails because a prosecutor has no such power. I FURTHER PROCEEDINGS ARE NECESSARY TO DETERMINE WHETHER THE CRIMINAL PROCEEDINGS WHICH WERE INITIATED WHEN THE PROSECUTOR CONCURREDIN THE COMPLAINT WERE TIME-BARRED The trial court ruled that the misdemeanor charge against petitioner was initiated in 2002 when the court clerk filed a criminal complaint. If the trial court was correct, then there is no statute of limitations issue in this case. Since the trial court so ruled, there was no statute of limitations issue in the trial court. Since there was no statute of limitations issue in the trial court, petitioner's counsel was under no duty to advance a statute of limitations argument there—indeed,he had no basis for doing so. However, counsel did note the problem of the time elapsed betweenthefiling of the complaint and the prosecutor’s concurrence should the court rule that the concurrence constituted the initiation of proceedings. The People dispute whetherthat was the argument counsel was making, but as noted above that simply does not matter. There is no statute oflimitations issue in this case unless and until it is determined that the clerk did not initiate a criminal proceeding in 2002. The People claim that petitioner had an obligation to object on statute oflimitations groundsin thetrial court in order to advance such a claim in this court. (Supp.Ret. RPI, p. 26.) However, the People fail to explain the basis upon which such an objection might be madein light ofthe trial court’s ruling that proceedings were initiated within the statutory period. Obviously, there was noforfeiture. Moreover,if a court clerk is not authorized to initiate criminal proceedings without the concurrence of the prosecutor at some point, -22- as the People themselves admit is true, then the complaint shows on its face that the statute of limitations was not satisfied. The complaint showsonly that it is a documentfiled by a clerk, and is devoid of information which would justify the filing. The People might have a responseto the facial invalidity—e.g. a showing that there was a prior approval by a prosecutor—but that does not detract from the fact that the complaint is facially invalid. This is no different from a complaint whichis filed beyondthe statute oflimitations period. The prosecution may be able to show somereasonthestatute wastolled, for example the defendant's absence from thestate, but the accusatory pleading would remain facially insufficient. Accordingly, petitioner could not forfeit the statute of limitations issue by failing to raise it in the trial court. (People v. Williams, supra, 21 Cal.4th at p. 345.) At any rate, as petitioner has shown, petitioner did raise the issue as far as could be donein the face ofthe trial court’s ruling that, in fact, proceedings had commencedwithin the statutory time limit. If, contrary to the ruling of the trial court, a court clerk cannot commencecriminal proceedingsin the absenceofthe prior approvalof the authorized prosecutor, then the proceedingsin this case were not initiated until 2007, long after the expiration of the applicable statutory period. However, the People raise two other issues. Thefirst is easily dealt with. The People assert that petitioner cannot claim the protection of the statute of limitations because she wasa fugitive. (Supp.Ret., RPI, pp. 33-36.) However,petitioner failed to appear upon charges as to which she had signed a promise to appear. This case does not involve those charges. This case involves a chargeofviolating Vehicle Code section 40508. Petitioner was not a “fugitive” as to that charge. She had signed no promise to appear on that charge, and was under no court order to appear. Indeed, it is undoubtedly true that she did not even know such a charge was pending. -23- Indeed, in most cases a defendant cannot be a fugitive in a case wherethestatute of limitations is at issue, since that issue arises only whenthere has beena delayin filing a charge. The casecited by the People, People v. Abayhan (1984) 161 Cal.App.4th 324, involved a unique situation: the defendant was charged by felony complaint (which did not satisfy the statute oflimitations), and then absconded. In . this case, petitioner did not abscond with knowledgeof the pending charge, and, indeed, since this issue does notarise unless petitioner was not legally charged until 2007, petitioner was not a fugitive as to that charge during the period of delay-she was not even charged with that offense. She obviously did not forfeit her right to challenge that delay as resulting in an untimelyfiling. The People do, however, make one point worth considering. The People argue that an arrest warrant was issued for violation of Vehicle Code section 40508, and that the issuance of that warrant, even in the absenceoftheinitiation of criminal proceedings, satisfied the statute of limitations. (Supp.Ret. RPI, pp. 30-32.) As petitionerwill demonstrate, while there might be merit to that claim, the present recordis insufficient to determine the issue. Since the issue was not litigated in the trial court, petitioner acknowledges that the People should be given the opportunity to prove the facts which would support their argument. The People’s argumentis basedinitially upon the provisions of Vehicle Code section 40515. That statute providesthatif a person has signed a written promise to appearandfails to post bail or appear“the magistrate may issue and have delivered for execution a warrantfor his or herarrest within 20 days after his or her failure to appear... .” Whatis significant about this statute in the present contextis thatit authorizes a warrantto be issued in connection with the charges upon which the defendanthasfailed to appear. Nothingin the statute -24- purports to give a judicial officer powerto issue a warrantfor a violation of Vehicle Code section 40508, or any other statute other than those chargedin the pleading upon which the defendanthasfailed to appear. However, it is only if the warrant was issued for a section 40508 violation that the warrant would servetotoll the statute oflimitations for a violation of section 40508. It is obviously not the case that the issuanceof an arrest warrantsatisfies the statuteoflimitations for any offense the defendant may have committed, named or unnamed. — This statute was considered in People v. Superior Court (Copeland) (1968) 262 Cal.App.2d 283. That case did not involve a prosecution for violating section 40508, but the validity of an arrest upon a warrant. It is unclear from that opinion whether the magistrate purported to issue a warrant for a violation of section 40508. The opinion may just as easily be read as stating that because the defendanthadviolated his promise to appear, a warrant was issued upon the underlying charges. Whileit is true that the opinion refers to a “misdemeanorwarrant,” the traffic offenses occurredin 1967, when there were noinfractions in California, and thus any warrantissuedin the matter would be a “misdemeanorwarrant.” (See Tracy v. Municipal Court (1978) 22 Cal. 3d 760, 765.) However, whatis clearis that if the Copeland court was saying that a magistrate can issue an arrest warrant for a violation of Vehicle Code section 40508, rather than for the offenses upon which the defendanthasfailed to appear, that conclusionis not supported by the statutes cited—the statutes authorize an arrest warrant, but not for an uncharged offense. This same ambiguity is found in the Attorney General's opinion applying Copeland: 56 Ops.Atty.Gen. 165. However, assuming that both Copeland and the Attorney General were authorizing a warrant for a violation of Vehicle Code section 40508, and that this is actually permitted by the relevant -25- Statutes, the People’s argumentstill must fail for two reasons: 1) Copeland wasnot correctly decided, and 2) evenif correctly decided, warrants issued under the Copeland procedure are insufficient to satisfy the statute of limitations. The basic premise of the Copeland decision wasthis: “The offense,failure to appear, occurs in front of the magistrate, satisfying in every case the requirements of Penal Code,section 813, and People v. Sesslin [1968] 68 Cal.2d 418... .” (Id., 262 Cal.App.2d at p. 285, emphasis added.) However, the merefailure of the defendant to be present in court was andis not sufficient to show a violation of Penal Code section 40508. Vehicle Code section 40515, then as now, provides that a warrant maybeissued onlyif the defendantfails to appear and has not posted bail. The defendantis perfectly free to deposit bail, and allow the bail forfeiture to constitute conviction of the offense. The defendant's absencefrom court may be apparentto the magistrate; the defendant's posting of bail, vel non, is not. That is information that the magistrate must obtain from someother source, and for an arrest warrantvalidly to be issued that information must be presented in an affidavit. (U.S. Const., Fourth Amend.; People v. Sesslin (1968) 68 Cal.2d 418, 423.) The Copeland court failed to discuss or recognize this issue, and byfailing to do so cameto the erroneous conclusion that when a defendant is not in court the magistrate has all the information needed to issue a warrant for a violation of Vehicle Code section 40508. The Attorney General's opinion improperly expands upon Copeland. That decision was predicated uponfacts occurring before the magistrate. The Attorney General's opinion states that “The offenses here being examined, however, occur in front of the magistrate, if not literally, at least to the extent that they are documentedin the court's own records.” (56 Ops.Atty.Gen. atp. 166.) -26- However, information which may or maynotexist in records which are never properly presented to the magistrate are not “in front of the magistrate,” and it was only that factor which led the Copeland court to permit the issuance of a warrant absent compliance with the complaint procedure. The Attorney General cites nothing in support of this unwarranted and unauthorized expansion of both Copeland and the applicable statutes. Moreover, even if Copeland is authorizing warrants for 40508 violations, rather than for the underlying traffic offense, and that procedureis valid, the opinionisstill referencing warrants issued for an uncharged 40508 violation (and nothing in either Copeland or the Attorney General’s opinion suggests that the magistrate is permitted to initiate a criminal proceeding as well as issue a warrant). Itis clear that the opinion is not concernedwith the statute oflimitations. If that were the issue, the Copeland decision would havehadto find that the statute wasnot satisfied, because not only was there no oath oraffirmation in support of the warrant, but the issue of probable cause wasnever even presented to a magistrate for decision. As stated in Copeland, “A computer generates the warrant. No magistrate ever seesit. A court clerk affixes a magistrate’s signature facsimile stamp... .” (Id., 262 Cal.App.2d at p. 284.) Such a procedure, which appears to be the sameasthat utilized in the Los Angeles Superior Court,is insufficient to generate a warrant which will satisfy the statute of limitations. In discussing whether an arrest alone would satisfy the statute of limitations, the Court of Appealhasstated, “[S]ubdivision (d) of section 804 is drawn from former sections 800 and 802.5. [Citation.] A review of the legislative history of formersection 802.5 suggests the Legislature wanted those[sic, there?] to be a finding of probable cause, by grand jury, -27- magistrate, or judge, within the limitations period. [Citation.] In contrast to issuance of an arrest warrant, an arrest does not involve a finding of probable cause made bya neutral judicial officer or body.” (People v. Angel (1999) 70 Cal.App.4th 1141, 1146; see also People v. Johnson (2006) 145 Cal.App.4th 895, 901.) In fact, in accordance with this discussion, the California Legislature has adopted rules regulating the issuance of an arrest warrant which is not based upon an accusatory pleading, which is designated “a warrant of probable cause.” (Pen. Code § 817.) Such warrants cannot be issued unless a peace officer presents a declaration of probable cause to a magistrate, and the magistrate makesa finding of probable cause and signs the warrant. It is this statute which now controls the issuance of arrest warrants when a criminal proceeding hasnot beeninitiated. Even if warrants mayvalidly be issued under someotherprocedure,itis only warrants issuedin this mannerwhichare sufficient to satisfy the statute oflimitations. lf, as appears probable from the declarations supplied by the Appellate Division, arrest warrants are issued based solely upon information placed into a computerby a clerk, from which warrants are automatically generated, then the warrants have not been preceded by the judicial finding of probable cause necessary to permit that warrant to satisfy the statute of limitations. Petitioner recognizes that the “complaint” in this case purports to be a declaration on information and belief by a clerk including the language of Vehicle Code section 40508. However, the court clerk is not a peaceofficer, and thus cannot begin the warrant process under Penal Codesection 817. Moreover, evenif that declaration would be sufficient to allow a magistrate to issue a warrant, no signature of a magistrate appears on the document and there is no indication that any judicial finding of probable cause was -28- madeprior to the issuance of the warrant. Instead, it appears that the procedure was the sameas in Copeland: no magistrate ever saw the warrant. The warrant wasthusinsufficient to commencea proceeding within the meaning of the statute of limitations. Of course, as noted above,the trial court’s ruling obviated any necessity for the prosecution to show that a warrant was issued which could satisfy the statute of limitations, i.e., one issued by a magistrate uponinformation properly provided to the magistrate by a peaceofficer, and petitioner acknowledgesthat they must be given an opportunity to do so. Finally, petitioner stresses that in this case, assuming that a valid warrant wasissued following a judicial determination of probable cause, the criminal proceeding was commenced in 2007 when the prosecutoraffirmatively approvedtheinitiation of proceedingsin this case. The resolution of the statute of limitations question in this case does not detract from the fundamental point, which is that criminal proceedings cannotbeinitiated absentthe prior screening and approval of the authorized prosecutor. CONCLUSION The People havefailed to show that due processis satisfied by allowing clerks (or anybodyelse)to initiate criminal proceedings without the charges being subject to prior screening and authorization by the public prosecutor. Accordingly, the Appellate Division must be directed to vacate its contrary opinion. However, the People have raised a reasonable argument that the statute of limitations may have been satisfied in this case when the prosecutor’s approval was given in 2007. Since the trial court ruled that charges wereinitiated in 2002, the question of application of the statute of limitations never arosein that court, and the present factual recordis insufficient to determine the issue. Petitioner acknowledgesthat the People are entitled to present -29- evidence on this issuein the trial court should this court rule that the criminal proceedingsagainstpetitioner wereinitiated in 2007. Respectfully submitted, RONALD L. BROWN, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA llya Alekseyeff, John Hamilton Scott, Deputy Public Defenders Zohn Hamilton Scott Deputy Public Defender Attorneys for Petitioner -30- CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies that the enclosed Petitioner's Supplemental Traverse to Return of Real Party and Motion to Strike Exhibits is produced using 13-point Roman type including footnotes and contains approximately 8,388 words, whichis less than the words permitted bythis rule. Counsel relies on the word count of the computer program used to preparethis brief. Ad, B~ JOHN HAMILTON SCOTT Deputy PUBLIC DEFENDER DECLARATION OF SERVICE |, the undersigned, declare | am over eighteen years 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 January 17, 2013, | served the within PETITIONER’S SUPPLEMENTAL TRAVERSE TO RETURN OF REAL PARTY AND MOTION TO STRIKE EXHIBITS, JEWERELENE STEEN,on eachof the persons namedbelow by depositing a true copy thereof, enclosed in a sealed envelope with postage thereonfully prepaid in the United States mail in the City of Los Angeles, addressed as follows: ATTORNEY GENERAL STATE OF CALIFORNIA DEPARTMENT OF JUSTICE 300 SOUTH SPRING STREET LOS ANGELES, CA 90013 CITY ATTORNEY APPELLATEDIVISION 500 CITY HALL EAST 200 NORTH MAIN STREET LOS ANGELES, CA 90012 PRESIDING JUDGE LOS ANGELES SUPERIOR COURT 111 NORTH HILL STREET LOS ANGELES, CA 90012 CLERK, COURT OF APPEAL SECOND APPELLATEDISTRICT 300 SOUTH SPRING STREET LOS ANGELES, CA 90013 CLERK, APPELLATE DIVISION LOS ANGELES SUPERIOR COURT 111 NORTH HILL STREET LOS ANGELES, CA 90012 REED SMITH, LLP PAUL D. VOGEL, ESQ. 101 SECOND AVENUE,SUITE 1800 SAN FRANCISCO, CA 94105 | further declare that | served the above referred-to document by hand delivering a copy thereof addressed to: JACKIE LACEY, DISTRICT ATTORNEY APPELLATE DIVISION 320 WEST TEMPLE STREET, SUITE 540 LOS ANGELES, CA 90012 | declare under penalty of perjury that the foregoing is true and correct. Executed on January 17, 2013, at Los Angeles, California. EDNA R. SANTOS