STEEN v. APPELLATE DIVISION

Real Party in Interest, The People, Opposition

Cal.July 14, 2010

SUPREME COURT COP* IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JEWERELENE STEEN, Petitioner, Vv. APPELLATEDIVISION OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, S174773 (Ct. of App., 2nd Dist, Div. 4, Case No. B217263) (Willhite, Acting P.J., Manella,J., Suzukawa,J.) (Appellate Div. Sup. Ct. No. BR046020) (Weintraub, J., McKay, P.J., Wasserman, J.) Respondent, (Trial Ct. No. 6200307) THE PEOPLE OF THE STATE OF (Munisoglu,C., Dept. 66) CALIFORNIA, RealParty in Interest. SUPREME COURT FILED JUL 14 2010 REAL PARTY’S OPPOSITION TO © Frederick K. Ohlrich Clerk PETITIONER’S REQUEST : FOR JUDICIAL NOTICE Deputy CARMENA. TRUTANICH,City Attorney DEBBIE LEW,Assistant City Attorney Supervisor, Criminal Appellate Division KATHARINE H. MACKENZIE, kath Service on the State Attorney General required by California Rule of Court 8.29(c)(1) uty City Attorney arine.mackenzie@lacity.org State Bar No. 106349 ~CRIMINAL APPELLATE DIVISION 500 City Hall East 200 N. Main Street Los Angeles, California 90012 Telephone: 213-473-6900 Fax: 213-978-8779 Attorneys for Real Party in Interest PEOPLE OF THE STATE OF CALIFORNIA IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JEWERELENE STEEN, Petitioner, V. APPELLATEDIVISION OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent, THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. S174773 (Ct. of App., 2nd Dist, Div.4, Case No. B217263) (Willhite, Acting P.J., Manella,J., Suzukawa,J.) (Appellate Div. Sup. Ct. No. BR046020) (Weintraub, J., McKay, P.J., Wasserman,J.) (Trial Ct. No. 6200307) (Munisoglu,C., Dept. 66) REAL PARTY’S OPPOSITION TO PETITIONER’S REQUEST | FOR JUDICIAL NOTICE Realparty in interest, the People of the State of California, opposes petitioner’s request to take judicial notice of documents from a Fresno County Superior Court file of an unrelated criminal prosecution. Petitioner states that he “expects to rely upon the facts shown in these documents during oral argument.” (Request for Judicial Notice p. 2.) However,this appellate court is not the appropriate forum in which develop an additional factual record andthe “facts” petitioner proffers are not relevantto the legal issue this Court has directedthe parties to briefin the instantcase. TOPICAL INDEX OF CONTENTS Page TABLE OF AUTHORITIES ii INTRODUCTION 2 ARGUMENT 4 Petitioner’s Request for Judicial Notice Should Be Denied Because the Facts Contained in Documents in an Unrelated Court File are Irrelevant 4 CONCLUSION | 7 TABLE OF AUTHORITIES California Constitution Article III, section 3 California Cases Magini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057 People v. Peevy (1998) 17 Cal.4th 1184 People v. Webster (1991) 54 Cal.3d 411 Sokinsky v. Grant (1992) 6 Cal.app.4th 1548 Statutes Penal Code, § 684 § 950 § 952 § 959.1 § 959.1, subd. (c) § 959.1, subd. (c)(1) § 1004(1) § 1004(2) § 1004(4) § 1004(5) ii Page 5,7 5,7 2,5,6 Evidence Code, § 350 § 352 § 450 § 451 § 452, subd. (d)(1) Vehicle Code, § 40503, subd. (a) § 40508 § 40513, subd. (b) Other Statutes, California Rules of Court, rule 977(a) rule 977(b) rule 8.1115(a) rule 8.1115(b) lil INTRODUCTION On September 9, 2009, this Court issued an order to show cause “whythe relief prayed for in the petition for writ of mandatefiled July 20, 2009, should not be granted on the ground that Penal Codesection 959.1, subdivision (c), violates the separation of powers doctrine.” Thereafter, comprehensive briefing on that constitutional issue ensued byrealparty, petitioner, and amicuscurie, the District Attorney of Los Angeles County. Withthe filing of real party’s response to amicus curiae’s brief on February 23, 2010, this matter was“fully briefed” and is now pending the setting of oral argument. On June 28, 2010, petitioner filed a request for judicial notice. He seeks judicial notice of the following documents from the court files of the Superior Court of Fresno County in the matter ofPeople v. Johnny Brown, IH, case no. 1873110: 1) Defendant’s “Demurrer for Lack of Jurisdiction, Uncertainty, Failure to State a Public Offense, Barred Prosecution (California Penal Code § 1004(1), 1004(2), 1004(4), 1004(5))” — Ex. K 2) Transcript ofthe trial court proceedings of September2 and 9, 2009 — Ex. L 3) Trial court’s “Ruling on Demurrers” ~ Ex. M Petitioner further seeks judicial notice of documents from the court file of the Appellate Division of the Superior Court of Fresno County in the matter ofJohnny Brown,III y. Superior Court, App. Div. case no. 0002179 (trial court case no. 1873110): 4) Petition for Writ of Mandate — Ex. N 5) Appellate Division “Order on Petitions for Writ of Mandate” — Ex. O Petitioner states that the following facts are reflected in these documents: When Defendant Brownfailed to appear on twotraffic citations, a misdemeanorcharge offailing to appear in violation of Vehicle Code section 40508 wasentered into the court’s register of actions. The defendant filed a demurrerto the charge on the basis that it had not been filed by the prosecutor. The deputy district attorney told the trial court that the District Attorney’s Office had not intended to proceed on the misdemeanor charge. The prosecution and the defense negotiated a plea bargain in which the defendant would enter a pleato thetraffic infractions, but the failure to appear charge would be dismissed. Thetrial court asked the prosecutor, “what authority to [sic] you have. . . for the proposition that the District Attorney can dismiss failures to appear? It’s like the District Attorney dismissing contempt charges, which they can’t. It’s my prerogative. [J] You have any authority for the proposition that you can flush failures to appear?” Whenthe prosecutor failed to provide any authority, the court rejected the plea agreement. Thetrial court overruled the defendant’s demurrer, relying on an Attorney General opinion whichstated that a court is authorized to issue a warrantfor the arrest of a defendant whofails to appear. Defendant Brownfiled a writ of mandate in the Appellate Division of the Superior court challenging the trial court’s ruling. The Appellate Division foundthat the failure to appear charge had beenfiled by means of a complaintin electronic form, as authorized by Penal Code section 959.1, subdivision (c)(1). (Request for Judicial Notice, pp. 2-4.) Petitioner states, “These documentsare clearly relevantto this court’s determination whether, after a court has acted unilaterally to file a misdemeanor complaint, the prosecutor thereafter retains the ability to exercise discretion to terminate the prosecution.” Heasserts that the above “documentsreflect[] how such issues are actually resolvedin thetrial courts of California.” And, hestates that he “expects to rely upon the facts shown in these documents during oral argumentofthis matter.” (Request for Judicial Notice, pp. 2, 4.) Petitioner’s request for judicial notice lacks merit and should be denied. ARGUMENT Petitioner’s Request for Judicial Notice Should Be Denied Because the Facts Contained in Documents in an Unrelated CourtFile are Irrelevant Petitionercollects “facts” contained in selected documents of a Fresno Superior Court file to create a factual narrative about how onetrial court respondedto a prosecutor’s requestto terminatea failure to appear charge that had beenfiled by the court. He claimsthat these “facts? reflect[]” not just how one judge in Fresno County handled the matter, but reflects “how suchissues are actually resolvedinthetrial courts of California.” Through meansofjudicial notice, petitioner seeks to add evidence to the current appellate record, so that he can “rely upon the facts shownin these documents during oral argumentofthis matter.” (Request for Judicial Notice, pp. 2, 4.) Although Evidence Code section 452, subdivision (d)(1), permits judicial notice of the “Recordsof. . any court ofthis state,” petitioner’s request should be rejected. Forthefirst time in this Court, petitioner attempts, to use judicial notice in order to supply additional facts of howtrial courts in the state allegedly resolve the issue of a prosecutor’s discretion to terminate failure to appear charges. But, such “efforts, . . . to supply additional evidencethat there exists a widespread practice”in the state, “are in contravention of the generalrule that an appellate court is not the forum in which to develop an additional factual record... .” (People v. Peevy ( 1998) 17 Cal.4th 1184, 1207 [Supremecourt rejected defendant’s request for judicial notice of a trial transcript in an effort to supply the appellate court with additional evidencethat there existed a widespread practice by police in California to ignore a suspect’s invocation ofthe right to counsel].) Moreover,judicial notice ofpetitioner’s proffered facts should be rejected becausetheyareirrelevantto the limited legal issue before this Court. Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material maybe noticed. “But judicial notice, since it is a substitute for proof[citation], is always confined to those matters which are relevant to the issue at hand.” [Citation.] ‘While Evidence Codesection 451, provides in mandatory termsthat certain matters therein mustbe judicially noticed, the provisions contained therein are subject to the qualification that the matter to be judicially noticed mustbe relevant (Evid. Code, § 350, 450),”as well as “qualified by Evidence Code section 352 ....” [Citations.] We therefore “decline” to judicially notice material that“thas no bearing onthelimited legal question at hand.” [Citation.] (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, italics in Original.) At bar, this Court’s order to show cause was expressly limited to the constitutional issue of whether “Penal Codesection 959.1, subdivision (c), violates the separation ofpowers doctrine. (Cal. Const., art. III, § 3.)” (Order to Show Cause filed September9, 2009.)! If petitioner’s pointis that these documentsfactually illustrate that manytrial courts believethat they donot have to dismissa failure to appear count that the prosecution has not authorized and doesnot wantto prosecute — petitioner’s proffered “evidence”is irrelevant to the narrow legal issue before this Court, Real party has argued that under the law the prosecutionretainsthe discretion whetherornotthe to prosecutefailure to appear chargesfiled under Penal Code section 959.1. The mere fact that onetrial court in Fresno County did not let a prosecutor dismissa failure to appearchargeis irrelevantto the legal issue of whetherthestatute constitutionally infringes on the executive function. The issue before this Court is not how onetrial court hasor has not ruled on the issue. Likewise, the issue before this court is not how one ' In addition to his constitutional separation of powerschallenge to Penal Codesection 959.1, petitioner’s petition also raised statutory challenges based onthestatute of limitations and whether the complaint statutorily conferred jurisdiction over a criminal prosecutionif it was not in the name of the People under Penal Code section 684. (Petition, pp. 22-24.) 5 appellate division hasor has notruled onthis issue.’ Furthermore, petitioner’s proffered documents do not evenreflect how courts throughoutthestate are analyzing the legal issue of whether Penal Codesection 959.1, subdivision (c), violates the separation of powers. A review ofpetitioner’s documents show that no one argued or briefed this constitutional issue. In his demurrer, Defendant Brown argued that the traffic ticket citations andthe failure to appear charges should dismissed because they werenotfiled in a complaint that conformed with the statutory provisions of Vehicle Code section 40503, subdivision (a), and Penal Code sections 950 and 952. (Ex. K,pp. 1-8.) At the pre-trial hearing, whenthe parties raised a possible plea bargain, the court asked the prosecutorif she had any “authority . . . for the proposition that the District Attorney can dismissfailures to appear?” The prosecutor’s only response was “Um — nope. I'll leave it up to the Court.” Thereafter, Defendant Brown’s counsel submitted on her written pleadings. (Ex.L,pp. 6-8.) The trial court overruled the demurrerfindingthat the prosecutionofthetraffic offenses wasstatutorily authorized under Vehicle Codesection 40513, subdivision (b), because the notices to appear were on Judicial Council forms. (Ex. M,pp. 1-10) And, the trial court ruled that an arrest warrant could issue for the failure to appear charges without a separate complaint becausethe offense occurredin front of the court. (Ex. M., pp. 11-12.) Defendant Brown’s writ petition merely reiterated the same statutory arguments he made in his demurrer. (Ex. N, pp. 1-26.) The Appellate Division’s order denying the writ petition found that the failure to appear charge wasfiled in a complaint in electronic form under Penal Code section 959.1. (Ex. O, pp. 2-3.) * Petitioner’s request for judicial notice of the Appellate Division’s unpublished order denyingthe writ also “circumvents therule that, with exceptions notpertinent here, an unpublished decision ‘shall not be cited or relied upon by a court or party in any other action or proceeding . .. . (Cal. Rules of Court, rule 977(a), (b).)” (People v. Webster (1991) 54 Cal.3d 411, 428, fn. 4].) Former rule 977(a) and (b), of the California Rules of Court, is now rule 8.1115(a) and (b). ”3 netitioner proffers are irrelevantClearly, the documents and “‘facts since the constitutional issue this Court has askedthe partiesto brief — whether Penal Codesection 959.1 violates the separation of powers — was neverraised, briefed, or argued in Defendant Brown’scase. Therefore, real party requests this Court to “‘decline’ to judicially notice material that ‘has no bearing on thelimited legal question at hand.’ [Citation.]” (Manginiv. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [in an action involving tobacco advertising, Supreme court declinedto judicially notice reports of federal agencies on tobacco use becauseit was “irrelevant to the preemption question”that was on review].) CONCLUSION Forall the foregoing reasons, real party respectfully requests this Court deny petitioner’s request for judicial notice. DATED:July 13, 2010 Respectfully submitted, CARMENA. TRUTANICH,City Attorney DEBBIE LEW,Assistant City Attorney Superyisor, Criminal Appellate Division abi ; «+ KATHARINE H. MACKENZIE Deputy City Attorney Attorneys for Real Party in Interest PEOPLEOF THE STATE OF CALIFORNIA * Tt is also questionable whetherthe “facts”petitioner has picked from selected court documents to create his factual narrative are the proper subject ofjudicial notice. In Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570, the Court of Appealheld that while it may be properto take judicial notice of the fact that a documentexists in a file and even that a court madea particular ruling, a court could nottake judicial notice of the facts in the court documentas true. The Sosinsiy court listed a numberof facts in court files that are essentially hearsay allegations, which cannot be judicially noticed as true: “facts” in pleadings, affidavits, and court orders; “facts” set forth in an arrest report; comments madeata hearing by an attorney and a judge; “facts” contained in a declaration; “facts” contained in a depositiontranscript filed with a court; and an appellate opinion’s statementoffacts. (/bid.) PROOF OF SERVICE BY MAIL IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JEWERELENE STEEN V. APPELLATE DIVISION (Ct. of App. B217263, App. Div. Sup. Ct. No. BR046020, Trial Court No. 6200307) I, the undersigned, am employed in the County of Los Angeles, State of California. I am over the age of 18 and nota party to the above-referenced action. My business address is 200 North Main Street, 500 City Hall East, Los Angeles, California 90012. I am readily familiar with the practice of the Los Angeles City Attorney’s Office, City Hall East, for collection and processing correspondence for mailing with the United States Postal Service. In the ordinary course of business, correspondenceis deposited with the United States Postal Service the same dayit is submitted for mailing. On July 13, 2010, I served the following document REAL PARTY’S OPPOSITION TO PETITIONER’S REQUEST FOR JUDICIAL NOTICE by placing a true copyin a sealed envelope(s) for collection and mailing, following ordinary business practice, at 200 North Main Street, 500 City Hall East, Los Angeles, California 90012. The person(s) served, as shown on the envelope(s), are: John Scott Hamilton Deputy Public Defender Appellate Division 320 West Temple Street, Room 590 Los Angeles, CA90012 : Attorney for Petitioner, Jewerelene Steen Joseph Lane, Clerk of the Court California Court of Appeal Second Appellate District Division 4 2™ Floor-North Tower 300 South Spring Street Los Angeles, CA 90013 Clerk of the Court Appellate Division Department 70, Room 607 111 North Hill Street Los Angeles, CA 90012 Honorable Charles W. McCoyJr. Presiding Judge Los Angeles Superior Court Department One 111 North Hill Street Los Angeles, CA 90012 Honorable Elizabeth Munisoglu Commissioner of the Superior Court West Los Angeles Courthouse Department 92 1633 Purdue Avenue Los Angeles, CA 90025 Office of the Attorney General State of California EdmundG.Brown,Jr. 5" Floor, North Tower 300 South Spring Street Los Angeles, CA 90013 Office of the Los Angeles District Attorney Phyllis C. Asayama Deputy District Attorney 540 Hall of Records 320 West Temple Street Los Angeles, CA 90012 Attorney for Petitioner, Amicus Curiae Frederick Raymond Bennett Court Counsel, Los Angeles Superior Court 111 North Hill Street, #546 Los Angeles, CA 90012 I declare under penalty of perjury that the foregoing is true and correct. Executed on July 13, 2010, at Los Angeles, California. Saartco Secretary SS